Kuo and Minister for Immigration and Multicultural Affairs
[2006] AATA 1503
•15 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1503
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1287
GENERAL ADMINISTRATIVE DIVISION ) Re YI HAO (SIMON) KUO Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Ms G Ettinger – Senior Member Date15 December 2006
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant’s visa should not be cancelled pursuant to section 501 of the Migration Act 1958.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - visa cancellation – applicant not of good character - applicant arrived in Australia aged five – first criminal activity at 11 years, theft of $3.80 –knocked over by motor vehicle and sustained a serious brain injury at age 13 in Australia - damages received which are managed by Office of the Protective Commissioner – drug habit - applicant speaks only English fluently, and a little Hokkien, no Mandarin – can communicate with his father who speaks Hokkien and a little English – support of Williams family – only family in Taiwan is his sister whom he barely knows - compassionate grounds – visa cancellation set aside - discretion to allow him to remain exercised in his favour.
Migration Act 1958 s 501
Ministerial Direction 21
Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198.
Regina v Simon Kuo (Unreported, DC(NSW), Solomon J, No 01/11/1276, 8 November 2002)
Roadley v R (1990) 51 ACR ACrimR 336
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Mr C v Australia, Communication 900/1999 U>N> Doc CCPR/C/76/D/900/1999 (2002)Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239
REASONS FOR DECISION
15 December 2006 Ms G Ettinger – Senior Member BACKGROUND
1. The Applicant, Mr Yi Hao (Simon) Kuo is a 25 year old citizen of Taiwan who was born in Taiwan, and came to Australia in 1986 with his mother when he was five years old. His father who had been at sea, and was rarely home, located them after two to three years, and eventually joined them in Australia. The evidence before me indicated that his sister, (year of birth, 1978), did not come with the family, and has never lived in Australia. Mr Kuo’s first language is English. He speaks a little Hokkien which he cannot read or write, and no Mandarin. He has never returned to Taiwan.
2. Mr Kuo’s evidence was that due to his parents working long hours when he was a child, he spent a lot of time alone, and also amused himself on the streets with friends, scoring his first conviction for stealing $3.80 from lockers at age 11 years. He told me that he and his friends would also drink alcohol. Mr Kuo’s mother left the family when he was at the end of his primary schooling.
3. On 24 March 1994, aged approximately 13, Mr Kuo was hit by a motor vehicle and sustained a serious brain injury. He returned to school and almost completed year 12.The earliest medical report in the documents before me is the report of Dr S Buckley, consultant in rehabilitation medicine, dated 22 July 1996. Dr Buckley wrote as follows:
“Simon Kuo suffered a Traumatic Brain Injury in the ‘Extremely Severe’ range with an initial Glasgow Coma Score of 3 rising to 8 on admission to Royal North Shore Hospital, and a Post Traumatic Amnesia of greater than six weeks. In addition, he has fractures of the pelvis, right acetabular and femur which are healed, and fractures of the jaw which are healed.
As a result of his traumatic brain injury he has moderate cognitive deficits in a wide range of areas, but particularly in the functions related to frontal lobe function such as concentration, impulsivity and a poor assessment of social behaviours and significance.
…
In regard to the traumatic brain injury, it being more than two years since the accident it is unlikely that there will be any improvement in his cognitive function.
…
It appears most likely that Simon could manage to live independently and would not require supervision. There would, however, be a significant risk that in living on his own his poor insight and lack of judgement may well lead to the risk of him getting into trouble…”
4. On 29 June 1998, Dr S Middleton wrote:
“Cognitively clearly he would be likely to be significantly further restricted in his employment options …
His capacity to live alone and be protected from ‘manipulation and those who would take advantage of him’ would really … be a matter that would need to be considered in any great detail in the light of his progress over the next five years or so.”
5. In 2000, Ms A Stewart-Scott, rehabilitation case manager of Access Brain Injury Services recommended a rehabilitation plan including referral to a counsellor with expertise in brain injury. She noted recent activity in crime and drugs, reduced ability and motivation to organise and perform daily living activities, reduced ability to manage money and lack of vocational/educational goals and skills. She also noted that in 1998 neuropsychological assessment conducted at approximately four years post injury indicated Mr Kuo had “marked problems with sustained attention, immediate-short term verbal memory, short-term visual memory and capacity for new learning. Executive functions related to planning, organisation, and generativity were also impaired.” Ms Stewart-Scott noted that the most significant recovery of impairment usually occurs within the first two years following brain injury. In later reports, Ms Stewart-Scott notes Mr Kuo failed to keep certain appointments rendering the objectives in the rehabilitation plan difficult to achieve.
6. Mr Kuo struck up a friendship with the Williams family who had also been in a serious motor vehicle accident, and in particular with their daughter Claire. The family has been very supportive of him, Mrs Williams giving evidence in support of his application at the Tribunal and describing Mr Kuo as her third son.
7. Mr Kuo received a damages settlement of approximately $500,000. On 6 November 1998, the Supreme Court of New South Wales Protective Division found that Mr Simon Kuo was a person incapable of managing his affairs, and the Protective Commissioner took charge of his estate. He is currently paid a weekly amount out of that. Although he has frontal lobe damage, Mr Kuo has had various short term jobs.
8. Mr Kuo has been taking drugs, and has had various convictions for which he has served custodial sentences. Mr Hsiu Ch Kuo (“Mr Kuo senior”) gave evidence at the Tribunal assisted by an interpreter. He speaks very little English. He indicated that he would assist his son to find a job, and offer him accommodation (in his rented premises), where Mr Simon Kuo had in fact previously resided with his father. However since his release from gaol in July 2006, Mr Kuo has been held in immigration detention.
9. Mr Kuo’s few connections with Australia are his father with whom he can communicate a little in English and in Hokkien, and the Williams family. Mr Kuo cannot read or write Chinese. In Taiwan he has his sister who is three years older, and with whom he says he speaks regularly, but whom he barely knows because they have been separated since Mr Kuo came to Australia aged five. He has only seen her for a short period on one occasion, when she visited Australia in 2003. Mr Kuo said that she also visited Australia in 2004, but he did not see her on that occasion.
10. A delegate of the Minister for Immigration and Multicultural Affairs cancelled Mr Kuo’s visa on 12 July 2006. He has appealed that decision to this Tribunal, accepting that pursuant to section 501 of the Migration Act 1958 (“the Act”), he is not a person of good character, but appealing against the refusal to exercise the discretion to allow him to stay in Australia.
11. Having considered all the evidence, the legislation, Direction 21 and the case law, I decided on balance that the discretion to allow Mr Kuo to remain in Australia should be exercised. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
12. The issue I had to decide was whether based on all the evidence, legislation, Direction 21, and case law before me, I should set aside the decision under review and find that Mr Kuo’s visa should not be cancelled pursuant to section 501 of the Migration Act 1958 (“the Act”).
13. I note for the sake of completeness that a number of visa applications were made on behalf of Mr Kuo, and that immediately before cancellation he was the holder of a class AS 801 General (Residence) Spouse visa. I note also that there may be other visa applications which may not have been decided before the current cancellation which will be taken to have been cancelled at the same time as the current cancellation made on 12 July 2006.
RELEVANT LEGISLATION
14. Section 501 of the Migration Act 1958 provides as follows:
"501(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
(2)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.
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…..
Otherwise the person passes the character test.
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
…”
15. It is not disputed that Mr Kuo fails the character test pursuant to section 501(2) of the Act, because he has been convicted of offences which attract a term of imprisonment of 12 months or more (section 501(7)(c) of the Act). Accordingly, in considering the discretion to set aside the visa cancellation which would allow Mr Kuo to remain in Australia, I must take into account Ministerial Direction No. 21 (the “Direction”), being the Direction made by the Minister for Immigration and Multicultural Affairs pursuant to section 499(2A) of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under section 501.
EXERCISE OF THE DISCRETION IN SECTION 501 OF THE ACT
16. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction).
17. The three primary considerations in Direction No. 21 follow:
Clause 2.3 provides as follows:-
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
18. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
protection of the australian community
seriousness and nature of the conduct
19. In considering the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction), I have noted that paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. The offences which are relevant to Mr Kuo relate to drugs:
“(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
• persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
• the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
• offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community
….”
20. A list of offences for which Mr Kuo was charged was prepared by his legal advisors and follows:
SIMON KUO - SUMMARY OF CONVICTIONS
Date of Offence
Page reference in applicant’s bundle
Charges and available facts from Court records
Date Sentenced
Court
Penalty
11.11.92
58-59
Stealing ($3.80 from Andrew Liang at Frenchs Forest)
18.1.93
Bidura Children’s Court
GBB 3 months
3.2.95
60-63
Stealing (BMX bicycle worth $300 from Craig McIntosh at Brookvale)
6.6.95
Bidura Children’s Court
GBB 6 months
18.8.98
64-68
Goods in custody (proof of age cards); possess cannabis (4 bags)
12.11.98
Bidura Children’s Court
12 months probation and supervision
13.12.98
69-73
Possess cannabis (15.43 grams Balgowlah)
5.6.98
Bidura Children’s Court
GBB 12 months
$100 fine5.1.99
74-77
Possess cannabis (1 bag Manly Vale)
4.3.99
Bidura Children’s Court
GBB 12 months
$100 fine2.2.99
78-79
Demand money with menaces ($50 from Raymond Macchi, Brookvale)
8.6.00
Bidura Children’s Court
18 months recognisance and supervision
6.8.99
80-83
Possess heroin (0.5 grams Marrickville)
26.4.00
Newtown Local Court
$750 fine
Between 1.2.00 and 7.2.00
84-88
Larceny, goods in custody, false information (mobile phone stolen from Combined Loan Office in George St, laptop computer stolen from office, goods sold to Combined Loan Office under false pretences); breach of recognisance
4.8.00
Manly Local Court
4 months imprisonment suspended on GBB of 4 months
17.2.00
(no court record available)
Larceny
9.3.00
Downing Centre Local Court The Rocks
18 months recognisance and supervision
1.4.00
(no court record available)
Larceny
10.5.00
Hornsby Local Court Chatswood
Convicted
5.4.00
(no court record available)
Possess prohibited drug
26.4.00
Downing Centre Local Court Surry Hills
$250 fine
18.4.00
(no court record available)
Steal, goods in custody, false and misleading information, receive stolen property
10.5.00
Hornsby Local Court Chatswood
Convicted
4.5.00
(no court record available)
Larceny
4.8.00
Manly Local Court Dee Why
4 months imprisonment suspended on GBB of 4 months
29.6.00
89-91
Passenger in stolen car (Honda Civic stolen from Crows Nest Body Repairs)
23.11.00
Newtown Local Court
Convicted
25.9.00 to 29.9.00
93-94
Supply prohibited drug (heroin)
8.11.02
Sydney District Court
Imprisonment 2 years 9 months, non-parole period of 18 months
28.9.00
92
Goods in personal custody ($450), supply prohibited drug
15.11.02
Central Local Court Surry Hills
6 months imprisonment
20.12.00
(no court record available)
Take and drive conveyance
15.11.02
Central Local Court Manly
4 months imprisonment
16.7.01
(no court record available)
Shoplifting, maliciously destroy property
15.11.02
Central Local Court Dee Why
6 months imprisonment
23.8.01
(no court record available)
Larceny
15.11.02
Central Local Court Chatswood
6 months imprisonment
14.9.01
99-101
Larceny (5 CDs worth $99.05 shoplifted from K-Mart Broadway)
30.5.02
Manly Local Court
Convicted
25.10.01
102
Self administer drug/ enter enclosed land
15.11.02
Central Local Court Leichhardt
Rising of the Court
7.11.01
103-107
Larceny (Playstation and computer games to value of $499.75 from Grace Bros George Street)
15.11.02
Central Local Court Chatswood
6 months imprisonment
9.1.02
(no court record available)
Assault, shoplifting
4.6.02
Hornsby Local Court Chatswood
Convicted
31.1.02
95-96
107-114Larceny/Maliciously destroy property (chocolate taken from locked cupboard of Dippin Donuts Warringah Mall)
30.5.02
Manly Local Court Dee Why
Form 1
7.2.02
95-96
115-121Larceny ($500 taken from cash register at Cash Trader Mosman)
30.5.02
Many Local Court North Sydney
Form 1
11.5.02
122-125
Receive and possess stolen property, goods in custody ($140 worth of phone cards at Sydenham)
28.5.02
Newtown Local Court Ashfield
Convicted
6.6.02
(no court record available)
Assault, larceny, shoplifting, maliciously destroy property, possess prohibited drug, self administer drug
15.11.02
Central Local Court Burwood
6 months imprisonment
15.11.02
(no court record available)
Goods in custody
15.11.02
Central Local Court
6 months imprisonment
30.1.04
126-128
Larceny (attempt to take from cash register at DFS Galleria The Rocks)
2.6.04
Downing Centre Local Court The Rocks
9 months imprisonment suspended GBB 9 months
5.3.04
(no court record available)
Larceny
6.12.04
Central Local Court Dee Why
Breach of bond - 2 years further probation
27.11.04
(no court record available)
Larceny
6.12.04
Central Local Court
14 months imprisonment, non-parole period 6 months
2.9.05
(no court record available)
Larceny
14.10.05
Downing Centre Local Court
12 months imprisonment with non-parole period of 9 months
13.10.05
132-135
Larceny ($1,200 taken from cash register of clothing store at Mid City Centre)
11.11.05
Downing Centre Local Court
2 years probation with supervision
21. The list of offences indicates that from 1992 to 2005, Mr Kuo committed a series of offences. He explained the stealing of $3.80 in 1992 from lockers as needing the money to operate hot showers in the sports complex in which he and his friends found themselves. There were various larceny offences from 1995 to 2005. I noted that in 1998/99 the offences related to cannabis use, but the record indicates that from 1998/99, the Applicant was also smoking heroin. The offences Mr Kuo committed were serious offences under the law, and they are categorised as serious offences in terms of Direction 21 because Mr Kuo has been sentenced to a term of imprisonment of 12 months or more as a result of them.
22. Mr Poynder submitted that notwithstanding the serious nature of the offences, the early offences were impulsive, delinquent actions, and occurred as a result of immaturity, lack of familial supervision, and the effects of the frontal lobe injury.
23. Mr Poynder also referred to the judgment of his Honour Judge Solomon in Regina v Simon Kuo (Unreported, DC(NSW), Solomon J, No 01/11/1276, 8 November 2002), and the factors his Honour took into account on 8 November 2002 in sentencing Mr Kuo to a term of imprisonment of two years nine months with a non-parole period of one year six months, commencing on 31 January 2002 and expiring on 30 July 2003. Mr Kuo had been arrested after supplying an undercover police operative with small quantities of heroin and a small quantity of cocaine over a period of three days in 2000. I noted that this was the first time Mr Kuo had been convicted of supplying a prohibited drug, and that until his arrest in connection with those offences committed over three days, he had not spent any time in custody. His Honour stated:
“The prisoner pleaded guilty at the earliest opportunity to the offence.
…
I am satisfied in this case that the prisoner was at the very lowest end of the rung of the drug supply syndicate. He was a runner.
…
There are subjective features which I take into account in sentencing the prisoner.
…
I further take into consideration that the offence was committed, not for financial gain, but committed to feed the prisoner’s heroin addiction.
I further take into consideration that whilst the prisoner does have a criminal record, this is the first offence which involves the supply of a drug.
I further take into consideration the fact that the prisoner had not, until his arrest for this matter, spent any time in custody.
I further take into consideration the prisoner’s family background. … The prisoner has had a disrupted childhood, which was the subject of dislocation.
I further take into consideration that the prisoner, at the age of 12, was involved in a serious motor vehicle accident. … Suffice it for me to say that the prisoner suffered extremely serious head injuries … The prisoner was on a life support system for nine days. As a result of the motor vehicle accident, the prisoner suffered significant brain damage.
…”
24. There are also two occasions when Mr Kuo committed larceny, 27 November 2004 and 2 September 2005 for which no court records were available, and for which he received 14 months and 12 months custodial sentences. Mr Poynder submitted that the stealing was not for financial gain, but rather to sustain a drug habit.
25. Mr Poynder suggested that there was a difference between the seriousness of the offence, and the seriousness of Mr Kuo’s conduct. He referred to Dr Lennings’ opinions, submitting that Mr Kuo’s criminal conduct consisted of impulsive, poorly planned acts which were a result of the frontal lobe damage he had suffered.
26. Mr Eteuati disagreed with the submissions Mr Poynder made, submitting that it did not make sense to submit that an offence for which the sentence was two years and nine months was not a serious offence. He submitted that the two offences (2004 and 2005), for which there were no details, and for which Mr Kuo received 14 and 12 month sentences were serious matters. He conceded that the offences were not at the highest level such as murder or rape, but were nevertheless serious offences.
27. I accepted Mr Eteuati’s submissions that the offences and the conduct were both serious, and was mindful that the sentences imposed on Mr Kuo reflected that, mindful also that in sentencing the Judge may of course take into account previous offences. I noted in particular Judge Solomon’s views that Mr Kuo was “at the very lowest end of the rung of the drug supply syndicate. He was a runner. …. the offence was committed, not for financial gain, but committed to feed the prisoner’s heroin addiction.” I accepted what Judge Solomon had to say in 2002, and there was nothing before me which indicated that the activities were not to feed Mr Kuo’s then drug habit.
28. I was mindful also of the serious brain injury and frontal lobe damage which Mr Kuo suffers, noting that the early offences were in connection with cannabis. The evidence that he turned to cannabis and then heroin use in order to deal with his pain was unrebutted, and I accepted that it was a function of his brain injury, and also the physical pain he suffers which emanates from his physical injuries, including having one leg shorter than the other due to the motor vehicle accident.
29. In my considerations of the seriousness and nature of the conduct in the context of protection of the Australian community, I noted both the written and oral evidence of Dr C Lennings, of the School of Behavioural and Community Health Sciences of the University of Sydney who is a clinical psychologist. He interviewed Mr Kuo, Mr Kuo senior, and Mrs Williams, as well as reviewing all the available documentation, and producing a report dated 10 October 2006 which is Exhibit A8. Dr Lennings’ report is the only recent report before me which has been prepared by a psychologist.
30. In his report Dr Lennings noted the medical reports and investigations relating to the severe head injury Mr Kuo sustained in 1994. He noted:
“a pattern of severe deficit associated with memory loss, disruption of attention and concentration, consequential thinking, planning and foresight, and also significant pain.”
31. Dr Lennings also commented as follows in his report:
“The car accident has caused two problems – the first is disruption of cognitive abilities and emotional behavioural regulation abilities, and the second is physical limitations that have caused pain. Simon’s response to use drugs can be seen as a function of both features of his accident. His use of pain killing medication such as heroin is in Simon’s mind directly attributable to its capacity to dull his constant pain, just as his poorly thought through decision making around his drug use is attributable to frontal lobe damage sustained in the car accident … it is necessary for him to receive appropriate management of both his pain and neurological dysfunction if his drug use is to be appropriately managed. … Simon has made it difficult for head injury rehabilitation to take place in the past. Such difficulties are, unfortunately, a function of his head injury and lack of insight. … Simon does present with a little more maturity now, but nonetheless he will require active case management support if he is (sic) make use of a head injury rehabilitation program.”
32. Dr Lennings reviewed all the reports available and summarised as follows:
“In summary, the documentation reveals a young man from a somewhat confusing family background with parents who do not speak English and cannot support his engaging with the necessary rehabilitative services. Despite some case management support he has been non-compliant (to be anticipated given the nature of his injuries) and has extensive neuropsychological and behavioural impairments.
…
… Simon’s medical state is dominated by his history of head injury and musculo-skeletal damage. … Simon has made it difficult for head injury rehabilitation to take place in the past. Such difficulties are, unfortunately, a function of his head injury and lack of insight. A pro-active management process has been required, a problem in enlisting parental support for such a process has eroded Simon’s compliance.”
33. Dr Lennings also opined:
“Simon does have some opportunity for employment, and with assistance can probably successfully undertake his baking apprenticeship. The issue is whether he can retain consistency long enough, but with support from an appropriate case manager, I believe this is possible. Simon does have an assured financial support program, although given that the levels of financial support have not changed in 6 years, it seems appropriate to review the support and increase it to a more realistic level. Doing so would go some way towards reducing the risk of engaging in stealing behaviour to make up for the short fall associated with erosion of his financial support through inflation.”
34. In Dr Lennings oral evidence, he confirmed many of the points he had made in his report.
35. Mr Kuo told me at the hearing that he has been drug free for the last eight months. He stated in his written statement that he has done drug awareness courses, relapse prevention, harm minimisation and ADD courses while in gaol, and that he intends to remain drug free. He also said that he is now on prescription medication for his pain management. I noted that he has had other earlier drug free periods. Mr Kuo told me that he intends to enter into a bakery apprenticeship. I accept Dr Lennings opinion that he is likely to be able to sustain it with the appropriate mentoring and support, for which he pay from the funds held in trust for him.
36. Mrs Williams, who has experience with persons with brain injury because her son was also severely injured in a motor vehicle accident, described Mr Kuo as having eventually now fallen to the bottom rung of the ladder, from where the only way was up. She was very emphatic that she was there for him, and would support him.
37. In summary, the conclusion that Mr Kuo engaged in conduct and criminal acts which are serious is unavoidable. However, Judge Solomon’s views are very pertinent. He held that Mr Kuo was at the very lowest rung of the drug supply syndicate, and that the offences were committed not for financial gain, but to feed his heroin addiction. I accept that.
38. I was mindful that at paragraph 21 of the Respondent’s Statement of Facts and Contentions, he asserted that Mr Kuo was a repeat offender in relation to offences involving drugs. I also noted Mr Poynder’s submission that previous to the offence in 2000 for which Mr Kuo came before Judge Solomon, his offences with resulting bonds had been for low level cannabis offences. I accepted Mr Poynder’s observations, as well as the fact that Mr Kuo was convicted of possessing a small quantity of heroin in August 1999 which resulted in a fine, but no bond. I accepted that apart from the 2000 offence, the drugs were for Mr Kuo’s use which arose out of his pain from the accident, and to which he then became addicted. I was mindful also of Mr Poynder’s submission that not withstanding the later sentences in 2004 and 2005 for larceny were longer sentences, they emanated from an accumulation of antecedents.
39. I was also satisfied from Dr Lennings’ evidence that with the appropriate support and rehabilitation which Mr Kuo can fund out of his settlement moneys, he should achieve a significant difference in his behaviour.
40. In summary, after considering all the evidence and submissions, I came to the conclusion that Mr Kuo’s offences whilst serious, were, committed by a young man from a dysfunctional family, and, as Judge Solomon stated, one who had suffered a serious head injury. Judge Solomon, with whom I agree, found that Mr Kuo was at the very lowest end of the rung of the drug supply syndicate, a runner. I further take into consideration as Judge Solomon did, that the offence was committed, not for financial gain, but committed to feed the prisoner’s heroin addiction. I also noted that whilst Mr Kuo has a criminal record, this was the first offence which involved the supply of a drug, and he had not, until his arrest for that matter, spent any time in custody. I take into account Mr Eteuati’s concession that Mr Kuo’s offences were not at the highest level such as murder or rape, and find that the offences whilst serious must be seen in the context in which they were committed. I find them to be at the low end of criminality.
likelihood of repetition of the conduct and risk of recidivism
41. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
42. Mr Poynder submitted that Mr Kuo’s early offences had been the result of minor impulsive delinquency and that later, after the motor vehicle accident and resulting frontal lobe damage, the larceny was to obtain money to feed the drug habit which Mr Kuo had developed to deal with his pain. He observed that contrary to the Respondent’s submissions, there had been no escalation of offences in Mr Kuo’s criminal history, but that the 2004 and 2005 sentences for larceny had reflected an accumulation of offences rather than reflecting the seriousness of each.
43. Mr Poynder emphasised the Applicant’s reliance on Dr Lennings’ opinion, which was that there was no underlying anti-social deviance in Mr Kuo, and that he is not intractable to rehabilitation. Mr Poynder submitted that the financial resources available to Mr Kuo to fund intensive rehabilitation as suggested by Dr Lennings would have an effective result.
44. Mr Eteuati submitted that Mr Kuo was likely to re-offend if allowed to stay in Australia. He submitted that Dr Lennings referred to Mr Kuo as having a susceptibility to drug addiction, and that accordingly spelled repetition of the criminal conduct. He submitted that Mr Kuo senior’s support such as it has been, has not been effective, that whether he would retire was not clear, and that his stated efforts to assist Mr Kuo to find a job were similarly unclear. As to Mrs Williams, notwithstanding her efforts and her statements that services were now more attuned to assist, Mr Kuo had frequently re-offended, Mr Eteuati submitted. He submitted that notwithstanding services provided, Mr Kuo had been in and out of gaol and committed crimes, and he foresaw such behaviour continuing in the future. Mr Eteuati referred me to Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 where he submitted the Full Court discussed what is meant by a real risk of recidivism in the context of deportation, being a real risk of recidivism, that is one which is not far-fetched or fanciful and can include a low or minimal risk.
45. In considering the risk of Mr Kuo re-offending if he is permitted to remain in Australia, I was mindful of instances of non-attendance and non-participation at rehabilitation, and of difficulties mentioned in various pre-sentence reports which have been prepared in regard to Mr Kuo. I have however accepted Mr Kuo’s undertaking to continue his now eight month drug free regime, and to commence a bakery apprenticeship. I am mindful that he now has prescription medication to assist with his pain management, and that this is therefore likely to supplant the need for unlawful drugs. I have noted as well, Mrs Williams’ evidence regarding her regard for Mr Kuo as a third son, her past care for him, and her stated future commitment.
46. Mr Kuo senior who is 70 years old, also said in his statement at Exhibit A6, that he intends to cease work, care for his son and help him find work. Unfortunately this was not entirely without contradiction, because when Mr Kuo senior was asked at the hearing whether he would move to live in Taiwan if his son was deported there, he said that he did not think he could live there, and did not think he could find a job there.
47. I accepted Dr Lennings’ opinion that the early incidents of stealing in which Mr Kuo was involved were the acts of naughty unsupervised children, and what occurred afterwards, including the addiction to drugs and the stealing associated with that, were as a result of the serious head injury.
48. I was also mindful of Dr Lennings’ opinion that whilst the superficiality in friendships which Mr Kuo exhibited, was a consequence of the head injury, the deep friendship with Mrs Williams was exceptional, partly due to the shared understanding with their family in regard to head injury. I was satisfied that this was a positive factor for Mr Kuo’s future.
49. I accepted Dr Lennings’ evidence that the rehabilitation Mr Kuo has been offered has not been as effective as it should have been. He opined that if the following were attended to, they would facilitate a change in the Applicant’s behaviour:
· the building of an infrastructure;
· appointment of a mentor;
· increased engagement with his father through the use of a Hokkien interpreter;
· the provision of accommodation by Mr Kuo senior;
· a rehabilitation plan which includes regular screening for drugs;
· a pain relief plan; and
· services to care for Mr Kuo
Dr Lennings emphasised that Mr Kuo can afford appropriate services because of the settlement he received, which is managed by the Protective Services Commissioner.
50. I noted the Respondent’s reservations, however preferred Mr Poynder’s submission and Dr Lennings’ opinions about rehabilitation being likely to be effective if certain infrastructure and safety nets were put into place. I saw little impediment to the suggestions about rehabilitation Dr Lennings made being implemented, particularly as they are financially viable in Mr Kuo’s case. In that regard I intend providing a copy of these Reasons for Decision directly to the Protective Services Commissioner.
51. I have also accepted that Mr Kuo has never previously been threatened with deportation, and was satisfied that this has now made a significant impact in his life, that he has reached the lowest rung of the ladder from where he can only climb up, as Mrs Williams described it.
52. Accordingly, I have accepted that given the offences Mr Kuo committed were to feed his drug habit, and the provision of intensive rehabilitation is available, it is likely to lessen the likelihood of further offences by Mr Kuo. I accept that the risk of recidivism is therefore low.
general deterrence
53. The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)).
54. Mr Poynder emphasised what appeared to be an inconsistency in the Respondent’s documents in relation to what the Respondent considered was the general situation regarding deterrence. Mr Poynder submitted that the general principle to be taken into account was the offender’s mental condition, and general deterrence was therefore not relevant in this case. In that regard he referred me to Roadley v R (1990) 51 ACR ACrimR 336 at 343.
55. I noted that even though the Respondent in his Statement of Facts and Contentions argued that the Tribunal should place significant weight on consideration of the deterrence factor, Mr Eteuati appearing as advocate for the Respondent, submitted that the Respondent recognised the particular circumstances of this case, and did not give place significant weight on the deterrence factor in Mr Kuo’s case.
56. I have considered Mr Kuo’s situation and the submissions of the parties, and find that although in this matter the general deterrent effect is not significant, I am mindful that it is a factor to be considered. Mr Kuo’s is a case of a person with a serious brain injury which is specific to him, and does not apply to the general population. I do not think deterrence in this case weighs heavily in favour of cancellation.
expectations of the australian community
57. Mr Poynder submitted on behalf of Mr Kuo that this was a case for compassion, and that a tragic event, the motor vehicle accident which damaged Mr Kuo had occurred when he was very young. He submitted that Mr Kuo is not a petty criminal, and but for the accident, the taking of drugs and its consequences would not have followed. He submitted the community had failed Mr Kuo as he had not received adequate support, and submitted that the Australian community would take a compassionate view of the circumstances in which Mr Kuo now found himself. He submitted that Mr Kuo would not re-offend.
58. Mr Eteuati made submissions relying on the Respondent’s Statement of Facts and Contentions, accepting Mr Kuo had suffered an accident aged 13, emphasising that compassion was appropriate to a certain extent, but that the Australian community was entitled to be protected from drug users, larceny, and a person who sold drugs. He submitted that Mr Kuo had no close connections to the community apart from his father and the Williams family, noting Mr Kuo’s evidence that he did not want to mix with former friends, and emphasising none of them had visited him in gaol. Mr Eteuati submitted that Mr Kuo does not have substantial connections in Australia. Mr Eteuati referred to Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 in support of the Respondent’s contention that a person who committed criminal acts did not meet the criteria to be a participating member of the Australian community. He noted that Mr Kuo’s sister resides in Taiwan.
59. Of course persons who are permitted to remain in Australia are expected to be law abiding citizens, and I am satisfied that there would also be a general expectation in the community that the Act would be administered fairly and humanely. (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054).
60. I am satisfied that Mr Kuo can with the assistance of a rehabilitation program such as envisaged by Dr Lennings, which Mr Kuo can pay for from the funds held in trust for him, embark upon an apprenticeship and no longer rely on drugs and stealing to feed that habit. Mr Kuo gave evidence that he has been drug free for eight months, and there have been other occasions when he has also been drug free. That evidence has not been questioned, and I am satisfied that with the appropriate support and infrastructure as suggested by Dr Lennings, he will remain drug free. I am satisfied that the evidence, particularly the evidence of Dr Lennings which has been canvassed in the paragraphs above, would persuade reasonable members of the community that the Applicant ought be to allowed to stay in Australia. I am mindful of Dr Lennings’ evidence that an effect of the brain injury is the superficiality of relationships, am however mindful that the relationship between Mrs Williams and Mr Kuo is particularly close. I am satisfied given the above that the community would not expect Mr Kuo’s visa should be cancelled.
best interests of a child or children
61. As I have no evidence that Mr Kuo has any children under the age of 18 years, this is not a relevant consideration.
other considerations
62. Other considerations are included in paragraph 2.17 of Direction No. 21 and are relevant to the present matter. Paragraph 2.17 reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …”
63. This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters. I have therefore taken into account the situation in which Mr Kuo finds himself.
Disruption to the Family and Hardship
64. If Mr Kuo’s visa cancellation were to be affirmed, and he was obliged to return to Taiwan, I accept it would cause hardship to him as he only has his sister there who is three years older, and whom he does not know well. Further the evidence that English is his first language and that he speaks no Mandarin and only a little Hokkien which he does not read or write, was not challenged, and I accept that is the situation. Mr Kuo has not been in Taiwan since he was five years old.
65. I am also mindful that Mr Kuo senior who is now 70 years old, and speaks little English would suffer hardship if his son’s visa cancellation were to be upheld because he has no other family with whom he communicates in Australia. I noted Mr Kuo senior’s evidence that he would not relocate to Taiwan after such a long time in Australia as he did not feel he could settle, and did not think he could find work. Mr Kuo senior is an Australian citizen.
66. I am mindful also that Mr Kuo has close ties to the Williams family and that Mrs Williams has been, and continues to be very supportive of him. She gave her evidence about her care for Mr Kuo very vigorously and convincingly and would be unable to visit him or care for him were he to be returned to Taiwan.
67. I accepted Dr Lennings’ opinion that a move to Taiwan would be likely to cause severe deterioration in Mr Kuo’s well being, and that without the rehabilitative program envisaged for him here, he was likely to be caught up in crime and drugs, and be unable to deal with the consequences.
Office of the Protection Commissioner
68. The Applicant made further submissions within the requisite time before the resumed hearing, and lodged a letter from the Office of the Protective Commissioner dated 11 December 2006 in which he informed Mr Kuo’s legal representatives that he could continue to administer Mr Kuo’s financial estate even if Mr Kuo was living overseas. The powers of management of the Protective Commissioner are described in Division 3 of the Protected Estates Act 1983.
69. The Applicant argued that the letter was written in a professional capacity on behalf of a person, and accordingly came within the exception referred to by Deputy President Block in Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239. Mr Eteuati accepted that the letter was not supportive of the Applicant’s case, and said that he would therefore not oppose my reliance on it. I accepted that argument, and have noted the contents in that letter, particularly as I had requested the further information.
Mr C v Australia and ICCPR
70. Mr Poynder referred to the document, Mr C v Australia, Communication 900/1999 U>N> Doc CCPR/C/76/D/900/1999 (2002), which he handed up at the hearing, submitting it was international jurisprudence in the manner of a legal authority to which he wished to refer, and not a document in support of Mr Kuo’s case which had been served outside the prescribed time. As Mr Eteuati had not previously seen it, I decided at the conclusion of submissions to give the Respondent the opportunity of making further submissions regarding the document, and subsequently heard the parties at a hearing resumed by telephone on 14 December 2006.
71. Mr Poynder submitted that the case of Mr C was apposite with that of Mr Kuo. He argued that in Mr C’s case, one of the grounds made out was that there was a forseeable risk that if Mr C failed to take his medication in Iran he would behave in such a way as to attract the attention of the authorities, and his Article 7 rights would thereby be interfered with. He argued that if Mr Kuo were to be returned to Taiwan, his forseeable conduct would attract a heavy response by the authorities there, thus leading to his ICCPR rights being breached.
72. In his further submissions, and at the resumed hearing, Mr Eteuati argued that the case of Mr C had no relevance to the case of Mr Kuo because Mr C had been granted refugee status on the basis of having a well-founded fear of persecution in Iran due to his religious beliefs. He submitted that Mr Kuo on the other hand, has not been assessed as likely to suffer persecution of any reason if he returns to Taiwan, his injury was not caused by Australia and Australia has not violated any of Mr Kuo’s rights under ICCPR.
73. I accepted the Respondent’s argument that Mr Kuo was in an entirely different situation where he has not been assessed as likely to suffer any persecution for any reason if he returns to Taiwan. I find that Australia has not violated any of Mr Kuo’s ICCPR rights, and the case of Mr C can be distinguished.
Services in Taiwan
74. At the hearing, I also requested the parties to provide information regarding services which Mr Kuo could access to assist him in Taiwan.
75. The Applicant lodged a copy of a document entitled “Does Universal Health Insurance Make Health Care Unaffordable? Lessons from Taiwan” from Health Affairs Volume 22, Number 3. (2003) and an article entitled “Nursing care provision for people with intellectual disabilities in institutions: A Taiwanese perspective”, Journal of Intellectual & Developmental Disability, December 2005; 30(4): 193-198. The Applicant’s submissions which accompanied the articles were that they were provided to assist the Tribunal in the determination of the issues and that they were accordingly “essentially neutral in character”. Mr Poynder also submitted that the Applicant was not relying upon any part of either article. He reiterated that argument at the resumed hearing, Mr Eteuati referring me to Kim (supra) and accepting the argument.
76. I accepted that the articles were neither favourable nor unfavourable to Mr Kuo, and found them not to be of great assistance.
Warning about cancellation
77. I was mindful that Mr Kuo had not previously been warned about the possibility his visa would be cancelled and that this could be a consideration pursuant to paragraph 2.17.
Other considerations
78. Mr Poynder canvassed the remaining sub-paragraphs in paragraph 2.17, noting there were no outstanding legal matters to be dealt with by the Applicant, noting that there is early evidence the Applicant has been of good conduct in relation to abstention from drugs, and that he is undertaking rehabilitation.
79. I accepted Mr Poynder’s submissions regarding what he termed the obvious and highly significant compassionate circumstances in relation to Mr Kuo’s early life and the effects of the accident on him.
Summary
80. In summary, I have already noted above the hardship to Mr Kuo were he to be deported to Taiwan. He has not been there since he was five years old, he has frontal lobe damage due to the accident he sustained in Australia at the age of 13, and he is not literate in the local Chinese languages and cannot read or write Chinese. He only has his sister in Taiwan, whom he barely knows. Mr Kuo’s 70 year old father would also be very distressed to lose him, and felt he would be unable to join his son in Taiwan. Mr Kuo’s ties are here. He has his father and the Williams family who are close to Mr Kuo.
81. I am satisfied that given the availability of intensive rehabilitation for which he can pay, and which is expected to assist Mr Kuo to remain drug free and engage in an apprenticeship as envisaged by Dr Lennings, a compassionate view should be taken. Having considered the secondary considerations, I am satisfied to conclude in conjunction with my conclusions in each of the primary considerations, that Mr Kuo’s visa should not be cancelled.
CONCLUSION
82. I have taken into account all of the evidence before me, the legislation, Direction 21, and the case law. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, as well as the secondary considerations, and having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, I have decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be exercised in Mr Kuo’s favour, and his visa not be cancelled. Nevertheless I emphasise the grave consequences of the Applicant’s conduct in relation to his situation as a non-citizen. It would seem appropriate that Mr Kuo be warned that if he is convicted of a further offence, a fresh assessment may be made with a view to cancelling his visa.
DECISION
83. The Tribunal sets aside the decision under review, and remits the matter to the Respondent with a direction that the Applicant’s visa should not be cancelled pursuant to section 501 of the Migration Act 1958.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger
Signed: [Sgd]
AssociateDate of Hearing 6 December 2006; 14 December 2006
Date of Decision 15 December 2006
Solicitors for the Applicant Kah Lawyers
Counsel for the Applicant Mr N Poynder
Solicitor for the Respondent Mr T Eteuati, Clayton Utz Lawyers
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