KEVIN PETER CULL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 607

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2290

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN PETER CULL

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date14 August 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Transitional (Permanent) visa – applicant a citizen of United Kingdom – applicant first arrived in Australia in October 1975 when aged 14 years 6 months – applicant has remained in Australia since arrival – applicant first convicted of criminal offence in January 1980 – applicant consistently convicted of offences throughout period 1980-2008 – applicant convicted of serious drug offences in 1996, 2000 and 2008 – applicant formally warned by Department in 2002 that further conviction would lead to reconsideration of visa cancellation – applicant does not pass character test – discretionary power to cancel applicant’s visa – Direction [41] – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – protection of Australian community outweighs other considerations favouring non-cancellation of visa – applicant’s visa should be cancelled – decision under review affirmed

Migration Act 1958 (Cth), s 501

Direction [no 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

14 August 2009 Deputy President S D Hotop

Introduction

1. Kevin Peter Cull (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 18 May 2009, cancelling his Class BF Transitional (Permanent) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

The Factual Background

2.      The applicant is a citizen of the United Kingdom (“UK”) who first arrived in Australia on 11 October 1975 when he was 14 years and 6 months of age.  He has continually resided in Australia since that date.

3.      The applicant’s recorded criminal history in Australia is as follows:

Court	Date	Offence	Count	Result
Perth Court of Petty Sessions	26.01.1980	Excess 0.08%	1	$100 Fine MDL Disq three months
Perth Court of Petty Sessions	02.12.1980	Dangerous Driving	1	$100 Fine MDL Disq six months
Perth Court of Petty Sessions	04.05.1981	No Seat Belt (Driver)	1	$25 Fine
Perth Court of Petty Sessions	17.06.1981	Stealing	1	Probation 12 months
Perth Court of Petty Sessions	08.07.1981	Stealing	1	Probation 1 year
Perth Court of Petty Sessions	08.07.1981	False Pretences	1	CSO 200 hrs
Perth Court of Petty Sessions	02.09.1981	Refused Breath Test	1	$200 Fine MDL Disq 6 months
Perth Court of Petty Sessions	30.11.1981	Undue and Excessive Noise	1	$45 Fine
Perth Court of Petty Sessions	03.01.1982	Traffic - demerit suspension	1	Demerit point suspension MDL Disq 3 months (Cum)
Perth Court of Petty Sessions	11.01.1982	False Name and Address	1	$50 Fine
Perth Court of Petty Sessions	11.01.1982	Careless Driving	1	$100 Fine

Perth Court of Petty Sessions	05.02.1982	Insulting Words	1	$5 Fine
Perth Court of Petty Sessions	18.06.1982	No Motor Drivers Licence - Under Suspension	1	$150 Fine MDL Disq 9 months
Perth Court of Petty Sessions	09.07.1982	Stealing	1	Probation 18 mths
Perth Court of Petty Sessions	09.07.1982	Break, Enter and Steal	3	Probation 18 mths each charge
Perth Court of Petty Sessions	09.07.1982	Break and Enter Dwelling With Intent	1	Probation 18 mths
Perth Court of Petty Sessions	10.12.1982	No Motor Drivers Licence - Under Suspension	1	1 mth Imprisonment MDL Disq 9 months (Cum)
Perth Court of Petty Sessions	10.12.1982	Excess 0.08%	1	$250 Fine MDL Disq 6 months (Conc)
Perth Court of Petty Sessions	06.04.1983	Carry Offensive Weapon	1	$50 Fine
Perth Court of Petty Sessions	06.04.1983	Assault Unlawful (Common)	1	$50 Fine
Perth Court of Petty Sessions	29.09.1983	Assault Unlawful (Common)	1	$200 Fine Prohibited to Enter Lic Prems for 4 mths

Perth Court of Petty Sessions	11.01.1984	Enter Lic Premises Contrary to Court Order	1	$80 Fine
Perth Court of Petty Sessions	12.08.1985	Dangerous Driving	1	$400 Fine MDL Disq - MDL Canc 12 mths
Perth Court of Petty Sessions	12.08.1985	Excess 0.08%	1	$600 Fine MDL Canc Disq 9 mths
Perth Court of Petty Sessions	12.08.1985	Unauthorised Use of a Motor Vehicle	1	$200 Fine
Perth Court of Petty Sessions	12.08.1985	Unlawfully Drive M/Vehicle	1	$200 Fine
Perth Court of Petty Sessions	30.06.1986	Cannabis Possess a Quantity	1	$100 Fine
Perth Court of Petty Sessions	30.07.1986	Cannabis Possess a Quantity	1	$100 Fine
25.08.1986	Traffic - Fitness to Hold	MDL Refused to Issue
Perth Court of Petty Sessions	07.03.1988	Possess Smoking Implement	1	$30 Fine
Southport Magistrates Court	18.07.1989	Carry Firearms Whilst Under the Influence of Liquor or Drug Unlawful Possession of a Dangerous Drug	1 1	On each charge convicted & fined $480 I/D Imp 30 days Time to Pay 3 mths

Perth Court of Petty Sessions	21.06.1991	Driving Under the Influence	1	$600 Fine MDL Canc & Disq 12 mths
Perth Court of Petty Sessions	21.06.1991	No Motor Drivers Licence	1	$500 Fine (Refusal) MDL Canc & Disq 18 mths (Cum)
Perth Court of Petty Sessions	30.09.1994	Possess Driver's Licence Calculated to Deceive	1	$250 Fine
Perth Court of Petty Sessions	30.09.1994	No Motor Drivers Licence - Under Suspension	1	$1000 Fine MDL Canc & Disq 18 mths
Perth District Court of Western Australia	07.11.1996	Amphetamine Possess With Intent	1	1 year 9 mths Imprisonment
Joondalup Court of Petty Sessions	13.12.1996	Fail to Stop When Called Upon	1	7 days Imprisonment
Joondalup Court of Petty Sessions	13.12.1996	Reckless Driving	1	4 months Imprisonment MDL Canc & Disq 12 mths
Joondalup Court of Petty Sessions	13.12.1996	No Motor Drivers Licence - Under Suspension	1	2 months Imprisonment MDL Canc & Disq 18 months

Joondalup Court of Petty Sessions	13.12.1996	Excess 0.08%	1	$750 Fine MDL Canc & Disq 12 mths
Joondalup Court of Petty Sessions	13.12.1996	No Motor Drivers Licence - Under Suspension	1	1 month Imprisonment MDL Canc & Disq 12 mths
Joondalup Court of Petty Sessions	13.12.1996	Possess Smoking Implement	1	7 days Imprisonment
Joondalup Court of Petty Sessions	13.12.1996	Cannabis Possess a Quantity	1	7 days Imprisonment
Joondalup Court of Petty Sessions	13.12.1996	Amphetamine Possess	1	1 month Imprisonment
Joondalup Court of Petty Sessions	12.10.1999	Fail to Stop When Called Upon	1	$100 Fine MDL Canc & Disq 3 mths
Joondalup Court of Petty Sessions	12.10.1999	Reckless Driving	1	3 months Imprisonment MDL Canc & Disq 2 years
Joondalup Court of Petty Sessions	12.10.1999	No Motor Drivers Licence - Under Suspension	1	9 months Imprisonment MDL Canc & Disq 2 years
Joondalup Court of Petty Sessions	29.11.2000	Possess Prohibited Drug	1	$300 Fine
Joondalup Court of Petty Sessions	29.11.2000	Cannabis Possess	1	$300 Fine
Perth District Court of Western Australia	01.12.2000	Amphetamine Possess With Intent	1	3 years Imprisonment
Perth District Court of Western Australia	05.12.2000	Amphetamine Possess With Intent	1	2 years Imprisonment (Cum)
Joondalup Court of Petty Sessions	19.10.2001	Unlawful Possession	2	1. 5 months Imp (Conc) 2. 8 mths Imp (Conc)
Joondalup Court of Petty Sessions	19.10.2001	Receiving	1	8 mths Imp (Conc)
Joondalup Court of Petty Sessions	19.10.2001	Possess Unlicensed Ammunition	1	$100 Fine (Global) Ammo Forfeited
Joondalup Court of Petty Sessions	19.10.2001	Firearm Possessed No Licence	1	$100 Fine (Global) Firearm Forfeited
Joondalup Court of Petty Sessions	19.10.2001	Cannabis Possess	1	$100 Fine
Joondalup Court of Petty Sessions	19.10.2001	Amphetamine Possess	1	$800 Fine
Perth District Court of Western Australia	25.07.2002	Amphetamine Possess	1	$500 Fine
Joondalup Magistrates Court	09.01.2008	No Drivers Licence (Disqualified from Holding or Obtaining)	1	$1000 Fine MDL Disq 9 mths
Joondalup Magistrates Court	09.01.2008	Unlawfully Possessed an Explosive Without a Licence	1	$200 Fine
Joondalup Magistrates Court	09.01.2008	Possess a Prohibited Drug (Cannabis)	1	$250 Fine
Joondalup Magistrates Court	09.01.2008	Give False Personal Details to Police	1	$200 Fine
Joondalup Magistrates Court	23.01.2008	No Drivers Licence (Suspended)	1	$200 Fine MDL Disq 9 mths
Perth District Court of Western Australia	30.10.2008	Sold or Supplied a Prohibited Drug To Another	1	2 years Imprisonment (Conc)
Perth District Court of Western Australia	30.10.2008	Sold or Supplied a Prohibited Drug to Another	1	2 years Imprisonment (Conc)
Perth District Court of Western Australia	30.10.2008	Sold or Supplied a Prohibited Drug to Another	1	2 years Imprisonment
Perth District Court of Western Australia	30.10.2008	Conspiracy to Possess a Prohibited Drug With Intent to Sell/Supply	1	18 mths Imprisonment (Conc)

The Legislation

4. Section 501(2) of the Act provides:

“ The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

The Ministerial Direction

5. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and Part B:

“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”

Direction [41] will be relevantly referred to in more detail later in these reasons.

The Evidence

6.      The evidence before the Tribunal comprised:

·     the “G Documents” (G1 – G17), pp1 – 170) lodged by the respondent (Exhibit R1);

·     statement of the applicant (Exhibit A1);

·     letters of support from Stephen Strutt (Exhibit A2), Linda Strutt (Exhibit A3), Martin Cull (Exhibit A4) and Keith Moseley (Exhibit A5) (who were called as witnesses);

·     a bundle of documents comprising additional letters of support (from persons who were not called as witnesses) (Exhibit A6);

·     the oral evidence of the applicant and the following witnesses who were called by the applicant:

-Stephen Strutt;

-Linda Strutt;

-Martin Cull;

-Keith Moseley; and

-Mariusz Weglewski.

The applicant’s evidence

7.      The applicant tendered in evidence a statement as follows:

“ My name is Kevin Cull came to Australia in 1975 I was ages 14 years old.  I came with my parents and brothers and sister as a family.  Both of my parents have past away so the only families I have left are my brothers and sister.  I also have two uncles and one aunt and two nephews, their was a period of time I did not talk with my family because of my drug use I did not think they would understand the problem I had but now I have told them what has been happening in my life but they still want to stand by me.  My sister is flying too Perth for my court appearance to give support also give evidence if needed in my case.  My brother will also be there they have sent written evidence which will help me get my visa back I also have some friends who will appear, to tell you about my character and why they think I should stay in Australia

I know that I have a long criminal record and yes it is for serous charges but they did not go in the higher levels of the scale.  This can be seen by the amount of jail time I got.  The maxim sentences for the drug charges on each account is 20 and 25 years but my sentence was 2 years 3 years then the last one was 18 months but  the court did not declare me a drug trafficker.  I was a drug addict but now I hope with help and support of friend and family that will all be over.  I want to be a good hard working Australian.  I have always tried to be.  I have a house in west Australia and have a good chance off getting my old job back if I get my visa back so I will get on track with my life.  If you send me back to England I will not get help or support from my family and friend which would be very hard on all concern my sister are very heart broken about this and if I go to England there is no way for me to stay with my family and we need each other.  It is not right to spill us up it is not Australian.  How many times do I have to pay for my crimes and also my family if you keep me in detention much longer I will not have a house to get out too I hope you could respectfully consider these things before passing judgment.  I have a great love for Australia and consider it to be my home as I have spent most of my life here, has you can see I could not get any legal with my case so I hope this ok.”  (sic) (Exhibit A1)

8.      The applicant adopted, for the purposes of his evidence-in-chief, a letter which he had written in April 2009 to the Department of Immigration and Citizenship (“Department”) in response to the notice of intention to consider cancellation of his visa given to him by the Department in February 2009.  The contents of that letter are (relevantly) as follows:

“ …

I have no ties what so ever with my country of birth, the United Kingdom.  I have no known family members in the UK.  All of my known family reside and/or are citizens of Australia.  Both of my now deceased parents who were very much loved and cared for me are buried in Perth.

To deport me to the UK now or ever would only serve to have a most debilitation effect on me.  I would be subject to a great hardship as, apart from having any family or friends there, I have no knowledge what so ever of the way of life there.  I would have nothing in the way of human support nor the likelihood of any finances substantial enough to re-establish a life and/or lifestyle.  Non of my siblings have the ability or inclination to re-locate to the UK.

Having arrived in Perth with my parents at the age of 14, my formative years were established here.  My final years of schooling were completed here as were my trade skills.  I am a qualified spray painter as well as a qualified and experienced roofing carpenter.  Additionally, since leaving school, I have had 2 substantial partner relationships in Perth and still maintain a close contact with these people, something which is a great strength to me.

Also giving me a great personal strength in my life are my siblings, especially my sister Mrs Linda Strutt.  Since the death of my mother in 1990 and then my father in the year 2000, my sister has been very close to me as I am to her.  I also have two brothers in Perth and although currently estranged from one of those, I maintain a very close relationship and friendship with the other.  My older sister has three children and my brother has four an since I have never had opportunity father my own children, my nieces and nephews are extremely close to me.  I have an enormous love an care for them and to be denied the opportunity to maintain a substantial role in their lives would be extremely distressing for them as well as myself.

…

Upon my release from prison I plan to enter an external drug rehabilitation program so as to better assimilate into the community.  My deportation would likely deny me of the opportunity to do such a course, thus hinder me in establishing the required footing to re-enter the community.  I have had a substantial struggle with drug addiction but have begun attending this whilst serving this current term of imprisonment by attending internal drug programs.

My addiction started about 15 years ago after the tragic death of my mother.  She died of a brain tumour after suffer from a long illness for which time I cared for her.  My father during that time, suffered from heart disease.  During his last year I was his sole carer as I was the one with least family obligations.  After such a long period of care and devotion, their death had a very debilitating effect on me.  The period of care, I believe, denied me of the opportunity of starting my own family however I wish to state that I have no regrets about this.  The close relationship I have with my nieces and nephews has compensated for this.  Through out my entire life I held a very close and loving bond with my parents and while not encarcerated, I visit their grave sites weekly (Sundays) as well as their birthdays anniversaries and also my birthday.

…

I promise to continue the rehabilitation of my weakening affliction and I whole-heartedly promise to never re-offend.  I have strong employment prospects upon my release from prison.  Additionally, I have substantial family support that will greatly assist with my desire and progress to be shy of my debilitating addiction.  My deportation will deny me of this as well, I believe, deny me of a complete opportunity to rehabilitate.

…” (sic) (G6, pp 47-50)

9.      The applicant also adopted, for the purposes of his evidence-in-chief, a statutory declaration, dated 30 April 2009, made by him in support of submissions made by Legal Aid WA on his behalf to the Department.  The contents of that statutory declaration are as follows:

“ …

3.I arrived in Australia in 1975 at the age of 14 with my parents, my older brother Christopher, my sister Linda and my younger brother Martin.  We came into Fremantle by ship, and other than a short period in Queensland approximately ten years ago, I have lived in Western Australia ever since.

4.I was granted a Class BF transitional (permanent) visa on 1 September 1994.

5.My mother died of a brain tumour about fifteen years ago and my father passed away about ten years later.  I took care of my mother on a fulltime basis for several years before she died  My father had a heart attack some time afterward, and my brother and I looked after him for about twelve months leading up to his death.  Both my parents are buried here in Australia.

6.My brothers both live in Western Australia and my sister lives in Queensland.  I think that Christopher and Linda are Australian citizens, but I am not sure about Martin.  The reason I think Christopher is a citizen is because he used to be a police officer.

7.I have worked in a number of trades over the years.  I used to work as a spray-painter but had to stop due to respiratory problems.  I have also worked as a self-employed mechanic and a panel beater.

8.Immediately prior to going into custody, I was working in the construction industry.  I hope to return to that job on my release, and my previous employer has indicated he is willing to take me back if the industry remains strong.

My relationship with Sallyanne …

9.Prior to my imprisonment in 2000, I was involved in a de facto relationship with Sallyanne … and had been for approximately seven years.

10.Sallyanne had four children from another relationship, and I came to consider them as my own.  I helped to look after them in the time we lived together, and they in turn came to regard me as a father figure.

11.Sallyanne and her children visited me on a weekly basis during my previous term of imprisonment.

12.Sallyanne and I are no longer in an intimate relationship, but we have remained close friends.  She still visits me on a regular basis.

13.The children continued to visit with her for some time but became uncomfortable due to the security and general environment of the prison.  Sallyanne and I agreed that it was in their best interests not to come out there anymore.  We still wish to stay in touch however, and I phone them regularly, sometimes every day.

14.I hope that I will be able to see the children again after my release and continue to build on the strong relationship I have with them.

My relationship with Samantha …

15.At the time of my conviction in 2008, I was in a relationship with Samantha …

16.Samantha was a heavy user of amphetamines during our relationship, and I was under pressure to finance her habit in addition to my own.

17.I hadn’t seen Samantha for months until recently, when she came to visit me.  She told me that she had cleaned up her act and was no longer using amphetamines.  She seemed a very different person to the one I used to know, and I was impressed by the change she had made in herself.

18.At this stage, I don’t know what is going to happen to my relationship with Samantha.

My record of convictions

19.I have a record of convictions in Western Australia.

20.I also have a record of minor offences in Queensland.  Other than that, I do not have any convictions in any other State of Australia, the United Kingdom or any other jurisdiction.

21.I have been sentenced to imprisonment on a number of occasions.  The most recent occasion when I was sent to jail was on 30 October 2008, when I was sentenced to two years imprisonment for conspiracy to possess a prohibited drug with intent to sell or supply it to another and possession of a prohibited drug with intent to sell or supply it to another.

22.I have a number of convictions related to drugs.  The first convictions occurred in 1986 for possession of cannabis.  I have subsequently been convicted of possession of amphetamine with intent to sell or supply in 1996, 2000 and 2008.  I was sentenced to imprisonment in relation to these offences, with the longest term being three years.  In each case, I was made eligible for parole.

23.I have no significant record of violent offences.  I have a bad traffic record, but my offending generally does not involve a high degree of criminality.

24.I accept that I have a problem with drugs and this is reflected in my record.  I feel that, with the assistance of the programs I am undertaking and the support of my family, I can address this problem and in doing so address the cause of my offending behaviour.

The circumstances concerning my most recent offences

25.My most recent offences occurred during the time I was in a relationship with Samantha.

26.I was using amphetamines at the time, but not to the extent that I had previously.  Samantha was using heavily, and that put me under significant pressure to obtain the drugs.

27.I was working at the time, and Samantha used to ring me at work to try and blackmail me.  She’s a different person when she’s on drugs, and I felt I was trapped in my relationship with her.

My current circumstances

28.I was sentenced to a total of two years imprisonment on those charges.  I am currently serving that sentence in Hakea Prison.

29.I have a record of good conduct in Hakea.  I am currently in the self-care unit, and I am working full time as a Level 1 paid worker.

30.I am in good health generally, but I sometimes have difficulty breathing due to my previous work as a spray-painter.

31.I have signed up for a PPP course in order to address my drug problems.  The program commences six weeks before my release date and continues on after my release to assist my transition into the community.  I am over the drug scene, and I want to be free of it and the problems it has caused me.

32.I hope to return to my previous job when I am released, but if this is not possible, I intend to find another job in the construction industry or at another trade I have worked at.  I have a strong work ethic, and I believe that this, together with my trade skills, will assist me to find gainful employment.

33.I do not wish to lose my visa and be returned to the UK.  All my family and friends are here, and I have no relatives or support left in the UK.

34.Martin used to visit me but no longer does, because I felt uncomfortable about having my family come out to the prison.  I still remain in close contact with him.  Linda lives in Queensland and Christopher travels a lot, so I have less opportunity to see them or speak with them.

35.It would be very difficult for me to return to the UK after all these years.  My brothers and sister cannot afford to travel overseas, so I would most likely never see them again.

36.I have no employment contacts or social network in the UK, and I would struggle to establish any sort of life there at my age.  It is a long time since I lived in the UK, and it is like a foreign country to me.

37.I came to Australia as a child and have never left since.  I have lived here most of my life.  Australia is my home, and I consider myself Australian.” (G15, pp155-159)

10.     In cross-examination the applicant gave evidence which may be summarised as follows:

·     all the members of his family live in Australia, namely, 2 brothers who live in Perth, and a sister, 2 uncles, an aunt, 2 nephews and 3 cousins who live in Queensland;

·     his sister moved to Queensland 7 – 10 years ago and he had not seen her since then until her present visit to Perth although he had kept in contact with her by telephone, recently on a daily basis;

·     he has not committed any offences other than as disclosed in his criminal record as he has been “caught for everything” he has done;

·     his early offences were “all to do with [his] drinking”, including various stealing offences, and they were “all minor offences”;

·     he does not remember some of the convictions recorded against him and he disputes that those convictions in fact relate to him, claiming that the Western Australia Police records are not accurate;

·     he has not held a driver’s licence since 1986, but he has continued to drive since he lost his licence;

·     he does not have a contempt for the law (but he asked (rhetorically) whether the law has any respect for him);

·     all of his offending has been “at the low end of the scale” and he has not “hurt or killed anyone”;

·     the drugs in respect of which he was convicted in 2000 were not his;

·     as regards the offences of selling or supplying a prohibited drug to another of which he was convicted in 2008, he did not have the relevant drugs, and he “did not have a good lawyer” and he pleaded guilty to those offences;

·     he did supply his then girlfriend with drugs because, if he had not, she would have stolen and damaged his property;

·     he had to get a VRO against his girlfriend but the police never attended when he called them;

·     all of his criminal offences are due to addiction to alcohol or addiction to drugs;

·     he now has “no interest in drugs” and he “drinks very little”;

·     he does not remember receiving a warning from the Department in 2002 about possible cancellation of his visa if he committed further offences;

·     he has done “one or two” 3-day or 10-day drug rehabilitation courses while in prison but they were not intensive courses and did not involve one-on-one contact or counselling;

·     he wants to attend an external PPP program involving counselling and frequent urine testing and if he is allowed to stay in Australia and complete the program, and with the support of his family, he will have no further problems with drugs;

·     he wants to stay and work in Australia, to “get away from the drug scene” in Western Australia and move to Queensland;

·     his 2 nephews, who live in Queensland, are aged 18yrs and 20yrs;

·     he does not have any nieces, and his references to nieces in his letter of April 2009 (see paragraph 8 above) were “a mistake”;

·     he has trade qualifications as a spray painter, roofing carpenter, scaffolder, mechanic;

·     he cannot do spray painting because of his health and he wants to work in the building industry;

·     he has been speaking to a Major in the Salvation Army about rehabilitation.

The evidence of the applicant’s supporting witnesses

Stephen Strutt

11.     Mr Strutt reiterated the contents of a letter, dated 10 July 2009, which he had written in support of the applicant as follows:

“ I am Kevins brother-inlaw and have known Kevin for twenty six years in that time Kevin has been a wonderfull caring man looking after both his sick parents for many years with the help of other family members when he lost his mum and then a short time after his dad Kevin who was living at home at the time took it pretty bad and being young ended up falling into bad company.  I have also worked alongside Kevin and found him to be a hard working mate and a talented spray painter.  I have spoken on the phone to Kevin and can honestly say that he knows what he has done wrong and is sincerely sorry.  He loves Australia and has never thought of going back to England even for a holiday he see Australia as his home.  He came here like me as a young boy with his parents brothers and sister a family.  Sure he has done wrong and has been punished for it so I plead with you to give him another chance his sister and I also his nephew would be hurt so much if Kevin was sent back to England.  I would gladly open my front door for Kevin to stay with us.  I hope that in writing this letter to you will help in your decision and let Kevin stay in Australia thank you” (sic) (Exhibit A2)

Mr Strutt said that he and the applicant’s sister and their 2 sons moved from Perth to Queensland 13½ years ago.  He said that his 2 sons (the applicant’s nephews) are aged 22 and 25 years and that they “think the world” of the applicant.  He said that he believes that the applicant is “over drugs”.

Linda Strutt

12.     Mrs Strutt affirmed the contents of a letter, dated 10 July 2009, which she had written in support of the applicant as follows:

“ I was shocked and distressed to hear that my younger brother Kevin might be transported to England and would like to give you an insight into my brother I know and love dearly.  We emigrated to Australia in 1975 as a family my mum and dad three brother and myself to settle in Perth WA at this time Kevin was 14 years old it was not long after our arrival in Perth that mum became ill with a brain tumour and suffering six years of illness with all the family helping out where they could it was not long after mum died that dad started to down hill health wise at this time Kevin was still living at home and came home one day to find his dad dead in his chair this was to affect him deeply.  I have two sons and Kevin loved to spend time with them taking them to the park treating them and babysitting when ever he was asked.  I moved to the Gold Coast soon after my dads death it was my way of copping with the loss of dad as I had two uncles and lots of cousins over here and needed to get away.  Not even thinking of the effect of losing his sister and two nephews to the other side of Australia would have on Kevin.  We have always been a very close family and if I ever needed help in any he was always there for me and my family.  Kevin has made some bad mistakes in life but I truly believe he has woken up and is ready to start a fresh.  I know Kevin is devastated at the thought of leaving the country he knows and loves going to somewhere he knew only as a child with no family all the family he knows are in Perth two brothers or the Gold Coast my family uncles and cousins nephews nieces.  I am pleading with you not to send my brother away as it would not only affect him but also it would distress me greatly and also our extended family.  We would be happy to have Kevin come and live with us”. (sic) (Exhibit A3)

Mrs Strutt said that her mother passed away “about 21 years ago” and her father passed away in 1995.  She said that since she has recently re-established contact with the applicant, she has found that he is “back to the old Kev” and she does not want to lose him again.  She said that if the applicant was in the UK, she would not be able to afford to visit him there.  She said that, although she could have contact with him by telephone, she now, as she is getting older, wants to see her family members more.

Martin Cull

13.     Mr Cull affirmed the contents of a letter, dated 30 June 2009, which he had written in support of the applicant as follows:

“ Kevin Peter Cull came to Australia at the age of 14.  He and I are brothers and our family has called this country our home for over thirty years.  To deport Kevin to England would be to send him to a place where he has no support from family.  All of his close relatives are now living in Australia.

I know that Kevin has been in trouble before, but this has been the biggest wake up call that he has had.  Our family has had its tough times with losing our mum and dad and Kevin got in with the wrong crowd of people.  This is the chance that he has needed to step away from that crowd and become a good citizen of Australia.

Kevin is a skilled spray-painter and has worked in many other trades.  He is hard working and has the ability to find employment.  I ask that you give him this chance to continue his life in Australia.”  (Exhibit A4)

Mr Cull said that he, like the applicant, had never returned to the UK since their arrival in Australia.  He said that, if the applicant was in the UK, he would not be able to visit him there but that, if the applicant was allowed to remain in Australia and went to live in Queensland, he would be able to visit him there although he would not do so more than once or twice per year.

Keith Moseley

14.     Mr Moseley affirmed the contents (as amended by him) of a letter, dated 17 July 2009, which he had written in support of the applicant.  The contents of that letter (as amended) are as follows:

“ I am writing to you in regards to Kevin Cull.  My name is Keith Moseley 32 yrs old.

Fifteen years ago I met Kevin, I had a rough childhood and got in and out of trouble and was a very lonely young man.  I needed someone who respected me and someone who accepted me.  With in a few years I met Kevin and he has been a good figure and a very trustworthy man to this day he has taught me a huge amount of skills and gave me a reason to live.  I have been in mental hospitals for suicide since I was 13 and I was addicted to many drugs by this age as well.

The last time I spoke to Kevin prior to him being in the detention centre he said ‘You have to go to a rehab, stay off the drugs and start looking after your son.  Be a father he can look up to.’  This was over 15 months ago.  In the last 15 months I have achieved more than I ever imagined possible.  I went to rehab and I have been drug free for a 10 months serbriatey period.  I work full time as a carpenter and am providing for my son and all of his needs.  I now have 50/50 shared care.

I would not have come this far let alone even live this long without Kevin’s encouragement and support.

Kevin has put a great amount of time and support into my life, I look up to him and need Kevin to be there for me and my son.  It would be detrimental to how I feel about life and security in this world if Kevin was sent away.  Please take all these words for their true meaning, Kevin is so real to me and I need him here.” (sic) (Exhibit A5)

Mariusz Weglewski

15.     Mr Weglewski affirmed the contents of a letter, dated 2 April 2009, which he had written in support of the applicant as follows:

“ My name is Mariusz Weglewski.  I am 33 yrs old.  I’ve been a good friend of Kevin’s for about 8 years.  He’s been a loyal friend who has always had time for me and always there to lend a helping hand.  I know Kevin has made mistakes in the past.  He is now paying the price for this.  Kev has a job to come back to upon his release.  Even though he has a house also he is welcome to stay with me.  He won’t be a burden to anyone therefore there is no need to deport him.” (G6, p 44)

Additional letters of support for the applicant

16.     The applicant also tendered in evidence (Exhibit A6) the following letters in support of his application:

·     letter (undated) from Trevor Strutt (a nephew of the applicant);

·     letter, dated 9 June 2009, from Norman Totman (a cousin of the applicant);

·     letter, dated 9 June 2009, from Kenneth Totman (an uncle of the applicant);

·     letter, dated 10 June 2009, from Alan Totman (an uncle of the applicant);

·     letter (undated) from Lee Scotchmer; and

·     letter (unsigned), dated 22 July 2009, purportedly from Shane Sinclair.

The respondent did not seek to cross-examine any of the authors of those letters and did not object to those letters being tendered in evidence.

17.     The following letters in support of the applicant are contained in the G Documents:

·     letter, dated 6 April 2009, from Leonard McDonnell (G6, p 42);

·     letter (undated) from Mladen Mrsa (G6, p 43);

·     letter (undated) from John Rowe (G6, p 45); and

·     letter, dated 20 April 2009, from Sallyanne Haining (G6, p 46).

Analysis

Application of the “character test”

18. By reason of the fact that the applicant has been sentenced to a term of imprisonment of more than 12 months – most recently, on 30 October 2008 (see paragraph 3 above) – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

19. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act is enlivened in this case.

Should the discretionary power to cancel the applicant’s visa be exercised in this case?

20.     Part B of Direction [41] comprises paragraphs 8 – 11.  Paragraph 9 states:

“(1)     … decision-makers must take into account the primary considerations in every case.  The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note:The primary considerations are set out in paragraph 10 of this Direction.  The other considerations are set out in paragraph 11.

(2)Decision-makers should only take into account directly relevant considerations.

…”

The primary considerations

21.     Paragraph 10 sets out the primary considerations as follows:

“ 10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)  the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)  whether the person was a minor when they began living in Australia;

(c)  the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)  relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

Protection of the Australia community

22.     Paragraph 10.1 states:

“ 10.1      Protection of the Australian community

(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)  the seriousness and nature of the relevant conduct; and

(b)  the risk that the conduct may be repeated.”

23.     The objectives set out in Part 1, paragraph 5 are as follows:

“ 5.1        Objectives

(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

24.     Paragraph 10.1.1(1) states:

“ 10.1.1    The seriousness and nature of the conduct

(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

Paragraph 10.1.1(2) lists (in paras (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“(f)the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;

…

Note: …

Paragraph 10.1.1.(2)(f) of this Direction is not intended to include offences related to personal use of illicit drugs less than a trafficable quantity.”

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community.  Due regard must be given to the extent of the person’s criminal record, including

(i)the number and nature of offences;

(ii)the period between offences; and

(iii)the time elapsed since the most recent offence.

(4)     The following factors are also to be considered:

(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b)any relevant factors the person provides as mitigating factors;

…”

25.     In sentencing the applicant, on 7 November 1996, to a term of imprisonment of 1 year and 9 months following his conviction of the offence of possessing amphetamine with intent, Sadlier DCJ said:

“ … In your favour I take into account you have cooperated with the police when they questioned you.  You have pleaded guilty at the first opportunity to the offence of possession with intent to supply this drug, and I take that into account.  On the other hand, there’s no remorse shown as far as I can see other than through the fact that you did indicate the intention early on to plead guilty.

You were, I’m told, an addict at the time who has since overcome your addiction.  I hope that is right.  I have been told by your counsel also that you were in a depressed state which led you to take drugs on a regular basis at the relevant time but, of course, there are many people who are in difficult situations and are able to cope without the use of prohibited drugs and without selling them.

So here we have it, that you intended to use some of the drug for yourself but also to sell part of it for your own purposes to profit and feed your own usage.  In that way, of course, you were circulating the drug in the community, no doubt at a low level but nonetheless it was a commercial type of operation to a degree and one which was deliberated and planned.  So you were profiting from the illegal activity and one which involved the dissemination in the community of amphetamines.

…”  (G11, pp 88-89)

26.     In sentencing the applicant, on 1 December 2000, to a term of imprisonment of 3 years following his conviction of the offence of possessing amphetamine with intent, Groves DCJ said:

“ …

Clearly the jury rejected your evidence.  Consistent with their verdict, they were satisfied beyond reasonable doubt that you did have knowledge of both the 15 grams and the 2.14 grams being at your place and also that you had dominion or control over those drugs.

The total weight, as I said, of powder containing methylamphetamines is 17.49 grams.  The Misuse of Drugs Act provides that if a person has in their possession more than 2 grams of methylamphetamine, they are deemed to have it in their possession with the intention to sell or supply it or a part of it.  In your case the jury has been satisfied beyond reasonable doubt that you had an amount of more than eight times the statutory amount.

…

It has to be said that you cannot be regarded in any real way as being a law-abiding citizen.  It seems that you have a propensity to ignore the law, to thumb your nose at the law by breaching the law in so many ways over such a long period as you have done.  Having said that, that’s not an aggravating factor but I simply note that in passing.  Of relevance, particularly so far as this offence is concerned, is that it was only in the last 4 years that you were previously convicted of possession of amphetamines with intent and on that occasion you were sentenced to 1 year and 9 months’ imprisonment.

It seems that you didn’t learn your lesson on that occasion and that you are continuing in the way in which you were proceeding then to use illicit drugs and to have possession of quantities which take you over the statutory amount to the extent of being in the category of selling and supplying those drugs. …

…

It has to be said also that since your previous offence in 1996, the Court of Criminal Appeal in Western Australia has stiffened the penalties for this type of offence; that is, they consider that more harsh sentences should be imposed.  The court has adopted the view that methylamphetamine is to be regarded as a hard drug in the same way as heroin and cocaine are regard (sic) as hard drugs and so that sentences for methylamphetamine must be looked at in the same light as those types of drugs.

…” (G10, pp 78, 79)

27.     In sentencing the applicant, on 5 December 2000, to a term of imprisonment of 2 years following his conviction of the offence of possession of amphetamine with intent, O’Brien DCJ said:

“ … The facts of the case briefly are that on 24 March last year, 1999, you had been to a hotel and you were riding a motorcycle home.  You came to the attention of the police and accelerated off.  A pursuit followed.  You drove at some speed and in a manner that was at least dangerous.  The chase came to an end once you had collided with the police car.

The police searched your helmet and secreted therein was a plastic bag with 9.29 grams of amphetamine which was analysed at being 8.4 per cent pure and that is above the usual street level purity for that drug according to the expert witness called at your trial.  At your trial you didn’t deny physical possession of the drug, but denied that you knew that the drug was in the helmet and you told the jury that you had picked up the wrong helmet when you were at the hotel.

That was a pretty unconvincing story and was clearly disbelieved by the jury, but it is disturbing that even after your trial and conviction of another offence, a similar offence, you weren’t prepared to acknowledge your guilt on this one.  Now, you’re not being punished for pleading not guilty, but I think the fact that you had been convicted on 19 October this year of possession of 17.49 grams of amphetamine with intent to sell or supply, that possession having been on 29 April 1999 and the offence for which I’m sentencing you being on 24 March 1999, it certainly indicates that you weren’t prepared to, as I say, come to grips with the fact that you are an amphetamine addict and acknowledge that you were in possession at the time.

…

… It seems that you have been a user of amphetamines for many years and your counsel, Mr Smith, has described your habit as being a serious amphetamine problem.  It was difficult for Mr Smith to make any submissions on your behalf concerning your amphetamine use because of your plea of not guilty and your complete denial of the offence.

It is difficult for me to make any assessment of how much and to what extent you did sell or supply, but it’s a reasonable inference that if you’ve been a long-term drug addict you would have to sell amphetamines to finance your habit.  There is no evidence that you were selling for profit and I am prepared to sentence you on the basis that you were going to use some of the amphetamine in your possession and would sell some – I can’t say how much – to finance your own habit.

… amphetamine use is a scourge in our community.  It destroys families, and you can now know that from your own experience, or it has the potential to do that, it places considerable stress on our health system and our associated services, and it also breeds crime because addicts turn to crime to finance their habits, and unfortunately, it’s usually the young who suffer the most.

It’s regrettable you haven’t sought some sort of assistance for your addiction over the years. …

…” (G11, pp 83, 84, 85, 86)

28.     In sentencing the applicant, on 30 October 2008, to a term of imprisonment of 18 months following his conviction of the offence of conspiring to possess a prohibited drug with intent to sell or supply, and to 3 (concurrent) terms of imprisonment of 2 years following his conviction of 3 offences of selling or supplying a prohibited drug to another, Martino DCJ said;

“ …

Count 1 is the offence of conspiring with another to possess a prohibited drug with intent to sell or supply.  The facts of that offence are that on 9 August 2006 you telephoned Ms E… and had a conversation with her.  In that conversation, you asked her to get at least two – I conclude from all the evidence, and the jury’s verdict that you were discussing obtaining .2 grams of amphetamine or methylamphetamine.  Ms E… agreed to do so.  Later that day you telephoned a person and said that you would see him soon, and I concluded (sic) that you were arranging to attempt to collect amphetamine or methylamphetamine that you’d discussed with Ms E…

The facts of count 3 are that on 18 August 2006, you received a telephone call from a person who wanted to know if it was worth their while coming down.  You then had a conversation with Ms E… about a whole ball.  Later on you sold or supplied drugs to the person who had telephoned you.  I conclude that your discussions concerned an eight-ball which is 3.5 grams of amphetamine or methylamphetamine.

The facts of count 4 are that on 19 August 2006 you had a telephone conversation with the person you had supplied drugs to on 18 August.  You had several telephone conversations with that person.  I conclude from all the evidence, and the verdict of the jury, that your discussions concerned approximately half an ounce or 14 grams of amphetamine or methylamphetamine which you supplied to that person.

The facts of count 5 are that on 21 August 2006 you received another telephone call from the person you had supplied drugs to.  You then had a conversation with Ms E… about obtaining drugs.  Later on that day, you provided your bank account details to that person and that person deposited $900 into your bank account, and later on you sold or supplied amphetamine or methylamphetamine to that person.

…

You were born in 1961.  You were aged 45 when you committed the offences.  You are now aged 47.  You do have a lengthy record which includes drug offences, and the record does not provide any mitigation.  You have been a heavy user of amphetamines.  At the time you committed the offences, you were using amphetamines.  I don’t find that you were a heavy user, but you were, certainly, using amphetamines, and Ms E… was a heavy user and was addicted to the drug.  That provided some pressure on you to provide drugs and you were not just a commercial dealer in drugs.  You were a person who was caught up in the problems that drugs cause, and you were distributing drugs in the community in an attempt to obtain drugs for yourself and for your partner.

Amphetamines and methylamphetamines are, as you know, very dangerous drugs that cause great damage in the community to the users, their families and the victims of crimes committed by users.  I need to punish and deter you and also deter others tempted to distribute drugs in the community by the sentence that I impose.

Unless you cease taking drugs, you will continue to offend and you’ll have to bear the consequences of that offending.  You are motivated to cease taking drugs.  You’ve made attempts in the past that have been partially successful, and you are still motivated to cease taking drugs.  You’re taking positive steps to do so including appropriate courses in prison.

You have a very good work ethic.  You’re a hard worker, and people for whom you have worked have taken the trouble to write references attesting to that.  You also have other good qualities.  You are a generous person who is willing to help others out when they need help.  I have decided that the offences are so serious that the only appropriate sentences are terms of imprisonment. …

…” (G9, pp 69-71)

29.     The applicant’s recorded criminal history in Australia (set out in paragraph 3 above) demonstrates that he has consistently been engaged in the commission of criminal offences over a long period of time, namely, from 1980 to 2006 (when the offences for which he was sentenced in October 2008 were committed), with only one significant temporal gap in his offending during that period, namely, the period 2002 – 2006 (for part of which he was incarcerated).  Although, in the period 1980 – 1994 the applicant’s criminal history largely comprised convictions of relatively minor motor traffic offences, drug possession offences and property offences, his criminal history in the period from 1996 has involved convictions of more serious motor traffic offences and drug-related offences in respect of which various custodial sentences were imposed, most notably the following convictions and sentences:

·     his conviction of possessing amphetamine with intent, for which he was sentenced, on 7 November 1996, to imprisonment for 1 year and 9 months;

·     his conviction of possessing amphetamine with intent, for which he was sentenced, on 1 December 2000, to imprisonment for 3 years;

·     his conviction of possessing amphetamine with intent, for which he was sentenced, on 5 December 2000, to imprisonment for 2 years; and

·     his conviction of 3 counts of selling or supplying a prohibited drug to another, for which he was sentenced, on 30 October 2008, to 3 terms of imprisonment for 2 years (to be served concurrently), and his conviction of conspiracy to possess a prohibited drug with intent to sell or supply, for which he was sentenced, on the same date, to imprisonment for 18 months (to be served concurrently with the abovementioned terms of imprisonment).

The seriousness of each of those drug offences is reflected in the remarks of the sentencing judges (see paragraphs 25 – 28 above) and the imposition by each of those judges of a substantial custodial sentence.  Each of those offences falls within the category of drug offences referred to in paragraph 10.1.1(2)(f) of Direction [41] which are considered to be serious.

30.     The Tribunal notes that the primary consideration referred to in paragraph 10(1)(a) of Direction [41] is as follows:

“ the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” (emphasis added)

and that paragraph 10.1.1(1) of Direction [41] states:

“ Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. …”

Although, as regards protection of the Australian community, “crimes involving violence” are singled out for special mention in Direction [41] thereby indicating that Direction [41] is particularly concerned with the protection of the Australian community from crimes of that kind, it is clear, having regard to the Government’s objectives set out in Part 1, paragraph 5 of Direction [41] (due consideration of which is required by paragraph 10.1(1) of Direction [41]), that Direction [41] is generally concerned with the protection of the Australian community from harm as a result of serious criminal conduct, including serious drug-related offences (see paragraph 10.1.1(2)(f) and the Note to paragraph 10.1.1.(2)).

31.     As regards the harm to the Australian community that may result from the kinds of serious drug-related offences of which the applicant has been convicted, the Tribunal notes the following comments made by the relevant sentencing judges:

·     Groves DCJ (when sentencing the applicant on 1 December 2000):

“ The community, and the community through the courts, won’t tolerate illicit drugs and the use of illicit drugs in the community when we see what harm and damage that it does to young people in our community.” (G10, p 80);

·     O’Brien DCJ (when sentencing the applicant on 5 December 2000);

“ I think this has been mentioned before, Mr Cull, by his Honour Judge Groves, and you are no doubt well aware of this yourself, that amphetamine use is a scourge in our community.  It destroys families, and you can now know that from your own experience, or it has the potential to do that, it places considerable stress on our health system and our associated services, and it also breeds crime because addicts turn to crime to finance their habits, and unfortunately, it’s usually the young who suffer the most.” (G11, p 86);

·     Martino DCJ (when sentencing the applicant on 30 October 2008):

“ Amphetamines and methylamphetamines are, as you know, very dangerous drugs that cause great damage in the community to the users, their families and the victims of crimes committed by users.” (G9, p 70)

32.     The Tribunal notes that the applicant has not been convicted of a crime involving violence, or the threat of violence, towards a person.  The applicant has, however, been convicted in 1996, 2000 and 2008 of serious drug-related offences of a kind which may cause great harm to the Australian community – harm from which the Government, as reflected in Direction [41], is clearly concerned that the Australian community should be protected.

33.     By way of mitigation the applicant attributed his serious offending from 1996 onwards to his addiction to amphetamines which he in turn attributed to the impact on him of the death of his parents (in 1988 and 1995).  The Tribunal is prepared to accept that the death of the applicant’s parents had a severe emotional impact on him and that that impact contributed to his becoming addicted to amphetamines and to his subsequent serious offending.  While those circumstances may serve to explain, to some extent, the applicant’s subsequent serious offending, they do not, in the Tribunal’s opinion, excuse, or significantly mitigate the seriousness of, that offending.

The risk that the conduct may be repeated

34.     Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2    The risk that the conduct may be repeated

(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)The following factors are to be considered as particularly relevant to this assessment:

(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.  Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

35.     The applicant’s recorded criminal history in Australia has been set out in paragraph 3 above and has been generally described in paragraph 29 above.  In his sentencing remarks on 1 December 2000 Groves DCJ commented (see paragraph 26 above):

“ It has to be said that you cannot be regarded in any real way as being a law-abiding citizen.  It seems that you have a propensity to ignore the law, to thumb your nose at the law by breaching the law in so many ways over such a long period as you have done.”

Thereafter the applicant has been convicted of 7 offences for which he was sentenced in 2001, 1 offence for which he was sentenced in 2002, and, most significantly, 9 offences for which he was sentenced in 2008.

36.     In his sentencing remarks on 30 October 2008 Martino DCJ commented (see paragraph 28 above):

“ Unless you cease taking drugs, you will continue to offend and you’ll have to bear the consequences of that offending.  You are motivated to cease taking drugs.  You’ve made attempts in the past that have been partially successful, and you are still motivated to cease taking drugs.  You’re taking positive steps to do so including appropriate courses in prison.”

37.     As regards drug rehabilitation courses, the applicant’s own evidence was that he had previously done “1 or 2” short courses in prison, courses which he described as non-intensive and which he appeared to acknowledge had been ineffectual.  He said that he wanted, and needed, to undertake an intensive rehabilitation program outside prison involving one-on-one counselling and frequent urine testing in order to overcome his amphetamine addiction but he had not had the opportunity to undertake such a program while he has been in detention.

38.     Two Ministry of Justice prison reports regarding the applicant are in evidence.  In a report dated 6 June 2001 (when the applicant was serving the sentences of imprisonment imposed on him in December 2000) it is stated:

“ Cull has self referred to substance use resource unit and has been waitlisted to participate in the 2 day programme.” (G8, p 65)

In a report dated 10 February 2009 (when the applicant was serving the sentence of imprisonment imposed on him in October 2008) it is stated:

“ ADDICTION OFFENDING: Cull is recommended as a suitable candidate for inclusion in the high intensity Substance Use program, Moving On From Dependency.  Cull is of the view he has the personal resources required to make sustained change and is willing to attend either custodial or community based Addictions Offending treatment.  This course is not available before his EED [4 June 2009].” (G5, p 40)

The applicant, as indicated in that report, did not have the opportunity of undertaking the “Moving on from Dependency” course prior to his release from prison into immigration detention, and the applicant’s evidence was that he has been unable to undertake that course or a similar intensive course while in immigration detention.

39.     There is, however, no evidence before the Tribunal from any relevantly qualified independent person, such as, for example, a prison psychologist or a counsellor, who may have been in a position to express an authoritative opinion regarding the extent of rehabilitation already achieved by the applicant and his prospects of further rehabilitation and to make an authoritative assessment of the degree of risk of the applicant’s using illicit drugs in the future or of his re-offending.

40.     A factor which, in the Tribunal’s opinion, is relevant to an assessment of the likelihood or risk of the applicant’s committing serious offences – in particular, serious drug-related offences – in the future is the extent to which he has accepted responsibility for, and is genuinely contrite and remorseful in respect of, his past offending.  Having observed the applicant give his evidence in this matter, and having regard to the content of his evidence (especially under cross-examination), the Tribunal is not satisfied that the applicant has accepted responsibility for the serious drug-related offences for which he was sentenced in December 2000 and October 2008, or that the applicant is genuinely contrite and remorseful in respect of those offences or, indeed, his offending generally.  In the Tribunal’s opinion the applicant’s criminal history, and his performance in giving evidence in this matter, demonstrate that he has little, if any, respect for the law and that he continues to have a propensity to break the law (as observed by Groves DCJ in his sentencing remarks on 1 December 2000).

41.     Having regard to the considerations referred to in paragraphs 35 – 40 above, the Tribunal is satisfied that there is a high risk that the applicant will continue to use illicit drugs (in particular, amphetamines) and will commit serious drug-related offences in the future.

Conclusion

42.     Having regard to the Government’s objectives set out in Part 1, paragraph 5 of Direction [41], the applicant’s criminal history including, in particular, the serious drug-related offences for which he was sentenced in November 1996, December 2000 and October 2008, and the Tribunal’s assessment that there is a high risk that he will commit serious drug-related offences in the future, the Tribunal concludes that the primary consideration referred to in paragraph 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates strongly in favour of cancellation of the applicant’s visa.

Whether the person was a minor when they began living in Australia

43.     Paragraph 10.2 of Direction [41] states:

“ 10.2   Whether the person was a minor when they began living in Australia

(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

Note: For example, if the person was between 17 and 18 years old on arrival.”

44. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. It is common ground that the applicant was 14 years 6 months old when he arrived in Australia from the UK, and began living in Australia, in October 1975. The applicant was, therefore, a “minor”, within the meaning of paragraph 10.2 of Direction [41], when he began living in Australia.

45.     It is also common ground that the applicant has not left Australia since the date of his arrival.

46.     Although the phrase “formative years” is not defined in Direction [41] the Tribunal’s understanding of the common meaning of that phrase leads it to infer that the applicant spent a substantial part of his “formative years” in the UK before he arrived in Australia and also a substantial part of his “formative years”, in Australia after his arrival.  Given that the applicant spent some of his “formative years”, from the age of 14 years 6 months, in Australia, that factor must, in accordance with paragraph 10.2(1) of Direction [41], be given favourable consideration.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity

47.     Paragraph 10.3(1) of Direction [41] states:

“ 10.3   The length of time that a person has been ordinarily resident

(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

Note:  For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

48. It is common ground that the applicant has been ordinarily resident in Australia from 11 October 1975 and that the date on which he was first sentenced in Australia is 26 January 1980 (the Tribunal, however, is unaware of the date of the offence for which he was sentenced on that date). The applicant’s recorded criminal history in Australia (set out in paragraph 3 above) shows that he has thereafter engaged in criminal activity, while at liberty, on almost an annual basis. Given that the applicant was ordinarily resident in Australia for a period of approximately 4 years before he commenced to engage in criminal activity, his case is entitled to be given favourable consideration to that extent in accordance with paragraph 10.3(1) of Direction [41].

Relevant international obligations

49.     Paragraph 10(1)(d) of Direction [41] refers to:

“ relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

International obligations imposed by the abovementioned Conventions are referred to in more detail in paragraphs 10.4 – 10.4.3 of Direction [41].

50.     Having regard to the whole of the evidence before it, the Tribunal is satisfied that there are no relevant international obligations to be considered in the applicant’s case.

Other considerations

51.     Paragraph 11 of Direction [41] states:

“11.     Other considerations

Note: These are not primary considerations.

(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

…”

Subparagraph (3) sets out (in paras (a) – (g)) an inclusive list of “other considerations”.  The Tribunal will specify, and comment upon, each of those “other considerations” below.

(a)      Family ties, the nature and extent of any relationships

52.     The applicant is not married and he is not presently in a de facto relationship or a close personal relationship.  He does not have any children of his own, nor are there any children or other persons who are financially or emotionally dependent upon him.  His parents are deceased (and are buried in Western Australia) and his only siblings live in Australia (2 brothers who live in Western Australia, and a sister who lives in Queensland).  He owns a house in Western Australia.  He is not presently employed.  The Tribunal is not satisfied that removal of the applicant to the UK would cause significant disruption to the applicant’s family and other ties to the Australian community, within the meaning of para (a).  The matter of hardship and distress to the applicant and his immediate family members is considered under para (e) below.

(b)      The person’s age

53.     The applicant is presently 48 years of age.  The Tribunal does not regard the applicant’s age as a significant consideration in this matter.

(c)       The person’s health

54.     In his statutory declaration dated 30 April 2009 (see paragraph 9 above) the applicant relevantly stated:

“ I am in good health generally, but I sometimes have difficulty breathing due to my previous work as a spray-painter.”

The Tribunal does not regard the applicant’s health as a significant consideration in this matter.

(d)      Any links to the country to which the person would be removed

55.     The Tribunal accepts that the applicant does not have any relatives or friends in the UK or any other links to the UK (other than that he was born there and spent the first 14 years and 6 months of his life there).  This consideration weighs in the applicant’s favour.

(e)Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia

56.     The Tribunal accepts that the applicant would be likely to experience substantial hardship if he were removed from Australia, given that he has lived in Australia exclusively for the past 34 years and regards Australia as his home, and his only family members and friends live in Australia.  It may be, furthermore, that the applicant’s siblings and other family members would be precluded from visiting him in the UK by reason of the financial cost.  It is also likely that the applicant’s employment prospects and general quality of life would be less favourable in the UK than in Australia and that his prospects of rehabilitation would be lower in the UK than in Australia where he has a supportive family and social network.

57.     On the other hand, the applicant’s present predicament, wherein his visa is liable to be cancelled, has been brought about by his own criminal conduct and despite the fact that he received a formal warning from the Department in 2002 (following his convictions of drug-related offences in 2000) that any further criminal conviction would lead to reconsideration of the cancellation of his visa (see paragraph 63 below).  The applicant has various trade qualifications and skills which may assist him to obtain employment in the UK, and he has a substantial asset in Australia, namely his house (whose value is not in evidence), which he would presumably be able to sell in order to help finance his resettlement in the UK.  It is, furthermore, uncontentious, in the Tribunal’s opinion, to note that the culture and way of life in the UK are not unlike those in Australia and that the UK has substantial national health and social security systems.

58.     The considerations discussed in paragraphs 56 – 57 above, in the Tribunal’s opinion, on balance weigh in the applicant’s favour.

59.     As regards “immediate family members”, it is doubtful whether that phrase, as commonly understood, extends to include a person’s siblings, and it clearly does not include a person’s uncles, aunts, nephews, nieces and cousins.  The list of “other considerations” in paragraph 11(3) of Direction [41] is, however, not exhaustive and, in the Tribunal’s opinion, the impact of the applicant’s removal from Australia on his siblings and other members of his extended family who are close to him, who are lawfully resident in Australia, is a relevant consideration.

60.     The Tribunal has had regard to the evidence of Linda Strutt (the applicant’s sister), her husband, Stephen Strutt (the applicant’s brother-in-law), and Martin Cull (a brother of the applicant) and it accepts that the applicant’s removal from Australia would cause great distress and emotional hardship to each of them, especially his sister.  The Tribunal also accepts that the applicant’s removal from Australia would cause distress to his nephew, Trevor Strutt, his uncles, Kenneth Totman and Alan Totman, and his cousin, Norman Totman, as reflected in their letters which are in evidence.  Likewise, the Tribunal accepts that the applicant’s removal from Australia would cause distress to his longstanding friends, Keith Moseley and Mariusz Weglewski (who gave oral evidence), and also to his other longstanding friends whose letters are in evidence (see paragraphs 16 – 17 above).

61.     The considerations discussed in paragraphs 59 – 60 above weigh in the applicant’s favour.

(f)        Level of education

62.     According to the applicant’s own evidence he has trade qualifications as a spray painter, roofing carpenter, scaffolder and mechanic, and, according to the Ministry of Justice prison report dated 6 February 2001, he “attended school to Year 10” (G8, p 65).  The Tribunal notes that the applicant represented himself at the hearing of this matter, gave his evidence articulately, and was able to call witnesses and present other evidence in support of his case.  In the Tribunal’s opinion, it cannot be said that the applicant was unable, due to a lack of education, to advocate on his behalf in this matter (as referred to in subpara (i) of para (f)).  The Tribunal is unaware of any efforts made by the applicant to “improve” his education so as to increase his “capacity to positively contribute to the Australian community through employment or other activities” (as referred to in subpara (ii) of para (f)).  The Tribunal does not regard this consideration as weighing significantly for or against the applicant.

(g)Whether the person has been formally advised in the past by an officer of the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act

63.     By letter dated 6 February 2002, addressed to the applicant c/- Acacia Prison, an officer of the Department informed the applicant as follows:

“ …

This letter is to inform you that as a result of your convictions for amphetamine, possession with intent, you have become liable for cancellation of your Australian permanent residence visa pursuant to s 501 of the Migration Act 1958 (the Act).

The Minister for Immigration and Multicultural and Indigenous Affairs has decided on this occasion not to order the cancellation of your Australian residence visa on the basis of these convictions, nevertheless you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa.  Disregard of this warning will weigh heavily against you if your case is reconsidered.

…” (G12, p 92)

A letter in similar terms, dated 30 August 2002, was sent by the Department, by registered mail, to the applicant at a residential address (G12, p 90).  The applicant, in his evidence, said that he did not remember receiving such a letter, but he did not deny that he had received such a letter.  The Tribunal is satisfied that the applicant did receive at least the letter dated 30 August 2002 which was sent to him by registered mail.  This consideration clearly weighs against the applicant.

Overall assessment of the primary considerations and the other relevant considerations

64.     Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether those considerations, on balance, favour cancellation or non-cancellation of the applicant’s visa.

65.     As regards the primary considerations, in the Tribunal’s opinion it is appropriate, because of the applicant’s criminal history including, in particular, the serious drug-related offences of which he was convicted in 1996, 2000 and 2008, and especially because of the high risk (as assessed by the Tribunal) that he will commit serious drug-related offences in the future, that the protection of the Australian community be given the greatest weight in this case.  Each of the other applicable primary considerations – relating, first, to the applicant’s age when he began living in Australia and, secondly, to the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity – is, in the Tribunal’s opinion, deserving of substantially less weight than that attached to the protection of the Australian community having regard to the fact that, respectively, he was 14 years and 6 months of age when he began living in Australia and had accordingly spent a substantial part of his formative years in the UK before arriving in Australia (see paragraph 46 above), and he had been ordinarily resident in Australia for only approximately 4 years before he commenced to engage in criminal activity (see paragraph 48 above).

66.     As regards the other relevant considerations discussed in paragraphs 52 – 63 above, some of those considerations weigh in favour of the applicant (see, in particular, paragraphs 56 – 61 above) and one of them clearly and, in the Tribunal’s opinion, significantly weighs against the applicant (see paragraph 63 above).  Those considerations which favour the applicant, however, are, in the Tribunal’s opinion, collectively deserving of substantially less weight than that attached to the protection of the Australian community.

67.     Having regard to the primary considerations and the other relevant considerations in this case, it is the assessment of the Tribunal that those considerations which militate in favour of cancellation of the applicant’s visa – in particular, the protection of the Australian community – collectively outweigh those considerations which militate against cancellation of the applicant’s visa.

Conclusion

68.     The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the applicant’s visa.

69. Accordingly, the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act should be exercised in this case.

Decision

70.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  4 August 2009
Date of Decision  14 August 2009
Representative of the Applicant:       Self-represented
Counsel for the Respondent              Mr A Gerrard
Solicitor for the Respondent              Australian Government Solicitor