L and Minister for Immigration and Border Protection
[2014] AATA 3
[2014] AATA 3
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5355
Re
L
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 7 January 2014 Place Sydney The decision under review is affirmed
...........[sgd].............................................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated –impact of the cancellation – decision under review affirmed.
LEGISLATION
Migration Act 1958: ss 499, 501(2), 501(6), 501G
CASES
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Pochi v Macphee (1982) 151 CLR 101
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078
Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998)
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
7 January 20141. Mr L is a 29 year old Fijian national. His parents brought him, and their four elder sons, to Australia in January 1988, a little while after the 1987 military coup in that country. They have lived here ever since, and he has never been back to Fiji. For some years, up until 1997, the family members sought, ultimately unsuccessfully, to be recognised as refugees. Between September 1994 and November 1999 they held various limited entry permits and visas. In November 1999 the family members obtained permanent residence visas.
2. Mr L is in custody serving substantially concurrent 4 and 6 year sentences for selling a prohibited firearm (4 years) and robbery with a dangerous weapon (6 years). His earliest possible date for release on parole is 1 May 2014.
3. Because both of Mr L’s current custodial sentences are for terms greater than 12 months he has a “substantial criminal record” and does not satisfy the character test in s 501(6) of the Migration Act 1958. But those sentences are not the only reasons why he could not satisfy the character test. He has other prior convictions, for robbery (in January 2003, two months after he turned 19) and for assault with intent to rob (in February 2006, three months after his 22nd birthday). Those convictions resulted in custodial sentences of 4 years (for the January 2003 offence) and 5 years (for the February 2006 offence).
4. The frequency of Mr L’s offences, and the length of the periods of imprisonment to which he has been sentenced, mean that Mr L has spent most of his adult life in custody. Since he turned 18 (in November 2002) he has only been at liberty in the community for three periods. None of those periods was longer than 7 months. During each of them he was subject to parole conditions, which he breached by re-offending. The dates of those periods when Mr L was at liberty on parole, and the details of his various offences and sentences, are summarised in the Schedule to these reasons.
THE VISA CANCELLATION DECISION
5. Mr L’s inability to satisfy the statutory character test enlivens the visa cancellation power in s 501(2) of the Migration Act 1958. In March 2008, whilst Mr L was serving the five year sentence for his February 2006 offence, a Departmental officer gave Mr L formal notice that consideration was to be given to the possible cancellation of his visa. Mr L responded to that notice by providing a detailed letter, dated 13 April 2008, various documents pointing to the rehabilitative activities he had undertaken in jail, and supporting commendations from his parents and his eldest brother.
6. After many months the Minister’s delegate decided not to cancel Mr L’s visa. The main reasons for that decision, although not disclosed to Mr L, were his long period of childhood residence in Australia, his key family connections here and his apparent willingness to address his offending behaviour. A Departmental letter of 17 December 2008 notified Mr L of the decision not to cancel his visa, but also contained a formal warning that new information, or new offences, could result in reconsideration of his visa status. The letter concluded by requesting Mr L provide a signed acknowledgement of his receipt of the letter, and his awareness of the possibility of a future decision to cancel his visa, if additional information became known to the Department. Mr L signed the requested formal acknowledgement on 21 December 2008, and returned it to the Department.
7. In January 2013, a little less than three years after Mr L began his current period of incarceration, Departmental officials again gave Mr L formal notice that consideration was to be given to the possible cancellation of his visa. This letter referred to his previous warning, and to the offences he committed between December 2009 and March 2010. Mr L responded to that notice in about mid February 2013. This time his representations were not successful. On 11 October 2013 a Ministerial delegate wrote to Mr L formally notifying him of the decision to cancel his visa. Mr L then lodged an application with the Tribunal to review the delegate’s visa cancellation decision.
THE REVIEW CRITERIA
8. In reviewing a visa cancellation decision by a Ministerial delegate the Tribunal is required to comply with any direction issued by the Minister under s 499 of the Migration Act 1958. The direction that has been in force since 1 September 2012 is “Direction no 55 – Visa refusal and cancellation under s 501”.
9. The stated purpose of Direction 55 is to guide the exercise of the visa refusal and cancellation powers contained in s 501 of the Migration Act 1958. The Direction contains a statement of “General Guidance” and sets out various principles. It describes them as “of critical importance” in furthering the stated objective of the Migration Act – specifically, the national interest regulation of the presence of non-citizens in Australia. Those principles, though stated at somewhat greater length in the Direction itself, essentially involve the propositions that
(a)Australian residence is a privilege, and is extended to non-citizens in the expectation that they will be law abiding and not cause harm
(b)generally, non-citizens who have committed serious crimes will not be allowed the privilege of Australian residence
(c)the circumstances of a person’s Australian residence, particularly their age and the length of their lawful residence, may permit some harm risks to be regarded as acceptable or tolerable, but the harm risks associated with some conduct may be so serious as to outweigh other considerations strongly favouring the non-citizen’s Australian residence
(d)considerations favouring a non-citizen’s continuing Australian residence include the length of any period of positive contribution they have made, the effect of visa refusal or cancellation on their family members, and the best interests of minor children who would likely be affected by an adverse visa decision.
10. In relation to a visa cancellation decision, Direction 55 requires the Tribunal to “take into account” a number of specific considerations, which it characterises as either “primary” or “other” considerations. Primary considerations are matters that must be taken into account, and which should “generally” be given greater weight. Other considerations are matters to which a decision maker should attach less weight.
11. Direction 55’s emphatic classification of considerations as either “primary” or “other” implies a clarity of distinction that is in some respects obscured by, and not well defined in, the exegetical text of the Direction. Although the two categories are described in somewhat more elaborate detail in Direction 55, the essence of the two categories can be conveyed by the following short descriptions:
(a)Primary considerations
(i)protection of the Australian community
(ii)the quality of the non-citizen’s ties to the Australian community
(iii)the best interests of resident minor children,
(iv)compliance with international “non-refoulement” obligations
(b)Other considerations
(v)the effect of visa cancellation on permanent resident family members
(vi)the effect on Australian business interests
(vii)the impact of non-cancellation on members of the Australian community, including the impact on victims of the non-citizen’s criminality
(viii)difficulties the non-citizen may face in maintaining themselves in their home country.
12. It is obvious, and Direction 55 recognises, that the four “primary” considerations[1] may point to opposite conclusions about the appropriate exercise of the visa cancellation power. That, in itself, complicates compliance with the direction that “primary” considerations are “generally” to be given greater weight. But the potential complications are increased by the scope for factual overlap between the “primary” and “other” considerations. That scope for overlap exists between the “primary” consideration of protecting the Australian community, and the “other” consideration of the impact of a “non-cancellation” decision on members of the Australian community. Similarly, there is scope for overlap between the “primary” consideration of the quality of a non-citizen’s ties to the Australian community and the “other” consideration of the effect of visa cancellation on a non-citizen’s resident family members.
[1] Only the first three of which have any relevance to Mr L’s particular circumstances.
13. The evident potential for tension between the various “primary” considerations, and between those considerations and at least some of the “other” considerations, points to the exercise of the visa cancellation power requiring a “balancing” exercise. This is recognised, though in a somewhat less direct context, in Direction 55 at paragraph 7(1)(b). It describes the decision maker as
… required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
14. That “balancing” exercise is one that requires a comparative, but ultimately impressionistic, evaluation of the totality of the relevant circumstances. This evaluation has to be carried out against the background of the objectives and principles described in Direction 55. It requires a careful and accurate assimilation of all the circumstances relevant to the particular non-citizen who contests their visa cancellation.
MR L’S CRIMINAL CONDUCT
15. The protective object of the Migration Act visa cancellation power dictates careful attention to the non-citizen’s previous offences. The Schedule to these Reasons lists only Mr L’s convictions as an adult. Between the ages of 12 and 17 he had been found guilty of about 14 charges involving assault or resisting arrest and about 21 charges relating to various kinds of theft, including robbery. Many of these matters, but far from all of them, had been dealt with by the issue of a statutory caution, and the formal dismissal of the charges. But on four occasions he had been subjected to control orders (under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW). The last of these was an order made in July 2002, in relation to an armed robbery offence. The 18 month control (ie custodial) order, and the six month non-parole period, imposed for that offence provides the explanation for the first entry on the Schedule. That entry records that at the age of about 17 and a half, Mr L was released on parole. He breached his parole conditions some 8 months later when he was arrested for robbery.
16. It is beyond dispute that Mr L’s offences are serious. What requires particular evaluation is the appearance that they have escalated in their gravity, and that the later offences have occurred after Mr L’s protestations of a strong motivation to reform. Even more concerning is that they are associated with a chronic drug addiction that Mr L appears unable to discipline. The factual matters that point to those appearances emerge from details of his offence history.
17. The January 2003 robbery involved Mr L participating, with a number of others, in accosting a young man in a public toilet, assaulting him and stealing his back pack. The sentencing remarks of the District Court judge in October 2003 record Mr L’s “unenviable record in the Children’s Court”, including the armed robbery offence for which he was on parole in January 2003. The remarks appear to give some credence to an explanation that the offence was preceded by heavy drinking, and was motivated by a desire to get money to go home, rather than any more sinister criminal purpose. The remarks also record Mr L’s asserted appreciation that he had to take control of his life, and his optimism that he would, in future, be successful in being able to keep out of jail. The four year custodial sentence, with a two year non-parole period, provided both a substantial sentence, and a substantial incentive for Mr L to secure an early release by good behaviour.
18. The dates set out in the accompanying Schedule indicate that Mr L was in fact released on parole in August 2005, a little more than six months after his non-parole period expired. The reason for the delay emerges from the contents of Probation and Parole Service reports between October 2004 and July 2005.
19. The first of those reports, dated 26 October 2004, whilst noting that his most recent prison reports were positive and satisfactory, commented that he was easily influenced by peers. The report considered that he had limited anger management and coping skills. Those limitations, along with alcohol and drug use, negative peer pressure and a lack of maturity, were factors that likely contributed to his offending behaviour. The report continued with the observation that Mr L appeared to have limited insight about the connection between these factors and his offending conduct, and that he had not shown any serious attempts to address the issues that placed him at risk of re-offending. The report did not support his release on parole and considered it imperative that he attend relevant rehabilitation programs before being released from custody.
20. As a consequence of that report, in November 2004 Mr L was refused release on parole. A subsequent report of 12 January 2005 addressed Mr L’s conduct following the November decision. It recorded that Mr L had taken the initiative to complete a relapse prevention course, and had shown insight to his alcohol and cannabis use. It credited him with a remarkable shift in maturity and motivation to address factors relating to his offending behaviour. But it expressed concern about his actual ability to remain committed, and recommended that he would benefit either from participating in a structured rehabilitation course or from individual psychological counselling. Again, his release on parole was not supported.
21. The next material reports are dated July 2005, and relate to Mr L application to have his prison classification lowered and be granted day leave. In May 2005 he had begun a special 12 week rehabilitation program relating to alcohol and drug dependence issues. He was about half way through the program when he applied for reclassification, and day leave. One July 2005 report, by a case manager in the Special Programs Centre noted that, contrary to his record, Mr L had been consistently good during the program and appeared to have a strong desire to change. The report included the comment that “so far I am unable to fault him”. Another report, recommending his reclassification, recorded positive feedback from both the course facilitators and custodial staff, and noted that Mr L appeared keen to make positive changes to his life. This recommendation needs to be understood against a background where he revealed that his lack of confidence, which he partly attributed to his limited literacy, had contributed to his offending. Nevertheless, Mr L’s positive reports were later repeated in a “Pre Release Report” prepared shortly before Mr L completed the 12 week course. It recorded that he had progressed through the program in a satisfactory manner, and indeed was to be commended for the effort he had displayed. In the light of these positive reports, Mr L was released on parole on 18 August 2005.
22. Following his release Mr L lived with his parents. He obtained some casual work and, for several months, reported regularly in compliance with his parole conditions. But the reservations expressed in some of the July 2005 reports about his actual ability to change proved to be justified. He was eventually drawn back to his former acquaintances and lifestyle. By the end of 2006 he was using alcohol to excess and had developed a heroin addiction. He was spending up to $350 a day on heroin. He instigated the robbery attempt that was involved in his February 2006 offence to get the money he needed to feed his heroin addiction.
23. That background indicates that Mr L’s February 2006 offence, of assault with intent to rob, was a considerably more serious, and premeditated, matter than the backpack theft in January 2003. On this occasion Mr L, with the assistance of two associates, planned to rob a Newcastle hotel. Mr L entered the hotel, confronted a barman with a knife, and demanded to be taken to the hotel safe. The obvious intention to rob the hotel seems to have been abandoned when, alarmed by the sight of the barman being manhandled by a knife wielding assailant, other hotel staff fled.
24. In the District Court sentencing remarks in August 2006, considerable emphasis was placed on Mr L’s heroin addiction, and its contribution to his offending conduct. A psychologist’s report claimed that Mr L had first used heroin at the age of 14, and had developed a regular habit at about the time he turned 17. The truthfulness of that particular history may be debatable, because in various reports in 2004 Mr L had made no reference to heroin use, and had claimed that his previous drug use had been confined to speed, cocaine, ecstasy and marihuana. Nevertheless, it is clear that by 2006 Mr L reported that heroin use was his major concern. The psychologist opined that he was, ambivalent, because of his peer relationships, about his ability to remain abstinent from heroin use. The psychologist also noted that psychological testing she carried out indicated that Mr L had not achieved functional levels of literacy, and his cognitive functioning was below average. The psychologist opined that Mr L was likely to display impulsive and poorly reasoned behaviour when under pressure – such as could occur as a result of drug use or peer pressure. The psychologist noted that the challenges he faced were significant, that it was “highly likely” he was developing a sense of institutionalisation that would further impede his development of independent living skills, that he would require considerable support, and that his prognosis was “extremely guarded”. The sentencing judge remarked it was obvious that both Mr L, and those assisting him, would have to put in a great deal of effort if he was to have “any chance of success at rehabilitation”.
25. The non-parole period for Mr L’s 5 year sentence for his February 2006 offence expired on 17 February 2009. However he was not released until August 2009. The essential reason for the delay was a recommendation, consequential upon an assessment that he had a “medium” level risk of re-offending, that he should complete a special therapeutic program (the Violent Offenders Therapeutic Program – “VOTP”). Mr L had embarked upon this program in mid 2008. An October 2008 report, from VOTP staff, reported that Mr L had satisfactorily completed the first phase of the program, and had started the first part of the treatment phase of the program. This report, like the special program reports in July 2005, described Mr L as motivated to continue to address his offending conduct. (In paragraph 37 I return to consider in more detail the extent of Mr L’s risk of re-offending, and the relevance of his period in custody after February 2006 to the assessment of that risk.)
26. In the months following his release on parole in August 2009, Mr L generally complied with his parole conditions, including attending fortnightly VOTP maintenance meetings. By about mid November 2009, after some frustrations, he had obtained regular, almost full time, employment as a labourer with a scaffolding contractor. That employment was interrupted by the ordinary Christmas / New Year shut down in the construction industry, but Mr L expected that he would be able to continue to work in the same manner, and to a similar extent, in 2010.
27. Despite his apparent employment, Mr L came under police surveillance on about 22 December 2009 – in connection with the theft of a motor vehicle and the robbery of its owner. Intercepted telephone communications on 1, 2 and 3 January 2009 revealed Mr L’s preparations to carry out a robbery with an associate. In furtherance of those plans, late in the evening of 3 January 2010 Mr L, with his associate, used a shotgun to shatter the glass doors of a licensed club, bail up four staff members, and rob the club of something in excess of $50,000. About a fortnight later, Mr L was one of two people who, again armed with a shotgun, unsuccessfully attempted to force their way into another licensed club.
28. In early March 2010, intercepted telephone communications record Mr L, and his associate, trying to find a person who was interested in buying a double barrelled shotgun for a small amount of money and a quantity of drugs. Late in the afternoon of 3 March 2010 police stopped a vehicle in which Mr L was a passenger. He had a shortened 12 gauge shotgun, and several rounds of ammunition, in his possession.
29. The NSW State Parole Authority formally revoked Mr L’s parole (with effect from the start of the covert police surveillance operations on 22 December 2009) on 19 March 2010. In June 2012, following a belated guilty plea, Mr L was sentenced for the various 2010 offences to which I have just referred. The sentencing judge noted Mr L’s significant criminal history, his long standing drug abuse and what she referred to as “general psychological malaise”.[2] The judge accepted the possibility, urged by Mr L’s legal representative, that he had reached a stage where he was motivated to reform. But she added that “in the light of his criminal history and its causes, it is hard to be too confident”.
[2] This appears to have been an allusion to matters remarked upon in the reports of Mr Watson-Munro – to which I refer later in these reason – at paragraph 58.
30. Mr L’s only other conduct that has been dealt with as involving a criminal offence occurred in January 2012. There was no evidence about the circumstances of this matter, other than Mr L’s own partly exculpatory evidence, the fact that he was sentenced to an additional 6 month term, and the fact that additional charge of selling a restricted substance was withdrawn and dismissed. Mr L’s explanation of the circumstances of this offence was that during a prison visit, another inmate’s mother gave him something to deliver to another prisoner. In the absence of any other evidence, I accept Mr L’s explanation, but regard both that explanation, and this particular offence, as comparatively immaterial matters in assessing the appropriateness of a decision to cancel Mr L’s visa.
THE NATURE AND SERIOUSNESS OF MR L’S CONDUCT
31. Direction 55, in directing consideration to the nature and seriousness of a person’s criminal conduct requires regard to some ten specified matters. These include the categorisation of violent crimes as matters to be viewed “very seriously”, the sentences that have been imposed, the frequency, trend and effect of repeated offending, and whether or not the person had re-offended after receiving a formal warning about jeopardising their migration status.
32. I referred in paragraphs 5 and 6 above to the notice of intention Mr L received in March 2008, his April 2008 response, and the formal warning he received in December 2008. Mr L’s 13 April 2008 letter to the Department asserted his claim to be “a shadow of the person he was” and to be fully committed to lawful participation in community life. It also acknowledged his understanding that he was being given “the only chance I will ever receive … to remain in Australia”. The sophisticated wording of the letter, and some of the information it conveyed, were the work of another, significantly more literate and informed, inmate. For that reason both the claim and the acknowledgment to which I have referred probably conveyed both a higher level of knowledge and understanding of the relevant issues, and a more specific strategy for rehabilitation, than Mr L actually possessed at the time. Nevertheless, Mr L contributed the basic information contained in the letter and claimed to have read it over before it was sent. In addition, he submitted letters of commendation from his parents, an uncle and his elder brother, all of which referred to the “wake up call” he had received by being given the notice of intention, and to his fear of being required to return to Fiji. The totality of those matters contributes to satisfaction that Mr L well appreciated that if he committed further serious offences that conduct would make it hard for him to resist a future decision to cancel his visa. That conclusion is even more comfortably embraced when regard is had to three further matters.
33. The first of those matters is his participation in the first phase of the VOTP. It is not unreasonable to infer that Mr L’s initial willingness to participate in that program, and his reportedly satisfactory participation in it during 2008, was substantially motivated by an awareness of the seriousness of the threat of visa cancellation that was conveyed by the Department’s March 2008 notice of intention.
34. The second relevant matter is the content of later prison notes recording his relief, in December 2008, at the then successful outcome of his response to the Department. The relief indicates that Mr L was well aware of the significance of the notice of intention, and of his vulnerability to visa cancellation unless he was able to demonstrate a real commitment to rehabilitation.
35. The third matter is Mr L’s own evidence in the current proceedings. He acknowledged that after his parole release in August 2009 he was aware of the immigration warning he had received. It was a matter that he discussed, during the period of his release, with both his parents and with his parole officer.
MR L’S INCARCERATION – FEBRUARY 2006 TO AUGUST 2009
36. Against the background of the assertions contained in Mr L’s 13 April 2008 letter, and his awareness of the risk of future visa cancellation, it is appropriate to review the totality of Mr L’s conduct during his adult incarceration.
37. After his arrest in February 2006 the recorded prison history is uneventful until some months after his August 2006 sentencing. In early 2007 he took steps to undertake various rehabilitation programs conducted by NSW Corrective Services. In May 2007 he was offered a place in a program (Phoenix) that addressed alcohol and drug dependency issues. He began that course in July 2007, and completed its core elements by October 2007. His participation was described as willing and constructive. He was said to have had a high level of attendance, and to have been able to discuss his alcohol and drug dependence issues in an open and constructive manner.
38. Up to that point Mr L’s conduct appeared to show that he was genuinely motivated to address both his drug abuse and his violent offending. The significance of that appearance, in justifying present confidence in his capacity to function lawfully in the community, is questionable. He had manifested a similar appearance in undertaking the special program in 2005, but according to the remarks of the sentencing judge in August 2006, Mr L then reported that he only did the program to qualify for parole, and considered that it had been of little benefit to him. Consistent with the ambivalence that report suggests, and which had been remarked upon in the 2006 psychologist’s report, a short time after completing the Phoenix program, on two separate occasions in December 2007, Mr L’s urine sample tests were positive for non-prescribed morphine. Comments attributed to Mr L in a November 2008 report record that his initial agreement in January 2008, to enter the VOTP was similarly motivated merely by his desire to qualify for parole. That acknowledgement provides informative background to his apparent drug use in December 2007. However the same November 2008 report also recorded Mr L’s asserted subsequent change of attitude to the VOTP and an actual appreciation of its potential benefit to him.
39. Arguably, Mr L’s genuine motivation to reform was evidenced by the fact that he did submit a clear urine sample in February 2008. Indeed, consistent with the genuineness of the motivation to change Mr L professed in his 13 April 2008 response to the Department, his urine sample test in June 2008 was also clear, as were all his subsequent tests before his eventual release on parole in August 2009. In July 2008 Mr L started on a methadone program. And by early October 2008 he had completed the preparatory phase of the VOTP. Program staff reports described him as an active participant who had worked on his goals, done well in the program, and had a lot of potential. It was anticipated that he would complete the subsequent nine month treatment phase of the program by about mid 2009. After that time he would need to undertake further “maintenance” to complement the strategies and learning imparted during the course of the VOTP.
40. Mr L commenced the second phase of the VOTP after the immigration warning letter of December 2008. A contemporaneous note by an officer in the special programs unit reported that he had settled in, and that the positive outcome of his immigration issues had given him a motivation to deal with his problems, rather than revert to drug use. A subsequent note (a week later on 14 January 2009) reported him being extremely happy at the outcome of his possible visa cancellation issues. In February 2009 he was reported to be calm and upbeat, and gaining more confidence and support from the VOTP program.
41. By early August 2009 Mr L was reported to be clear of all illicit substances and from other medications, including methadone. He had completed a VET Certificate I qualification in Skills for Work and Training, and five units of the six unit competencies required for a VET Certificate I qualification in Information Technology. His August 2009 discharge report from the VOTP was particularly thorough and insightful. It described him as having become more confident and at ease during the course of the program. It noted that he was impressively competent in identifying the impact of negative thinking on his criminal tendencies, in understanding how to change that kind of thinking, and to overcome it by exposing himself to realistic challenges. However, echoing concerns that had been expressed in both the July 2005 special program report, and the 2006 psychologist’s report, the August 2009 VOTP report also identified Mr L’s sensitivity about his poor literacy, his desire for acceptance and his lack of positive relationship skills. At one point the report attributed to Mr L a “core belief” in his own intellectual inadequacy and inability to achieve anything worthwhile. The potential, and disconcerting, significance of that self perception was that it tended to contribute to Mr L regarding lawful community living as “too hard”, and criminality as the only course realistically open to him. The report concluded that whilst Mr L had displayed diligence and determination during his participation in the program, he remained at risk of re-offending – particularly if he had difficulty securing employment, resumed contact with his past associates, or became involved in illicit drug use or alcohol abuse. He would need ongoing maintenance and support after his release from custody.
42. This generally positive, but clearly guarded, assessment of Mr L was taken up in the Probation and Parole Service Pre Release Report of 7 August 2009. This report summarised poor impulse control, substance abuse and criminal association, as the three principal risks that would challenge Mr L. Those concerns were reminiscent of the similar views expressed in the 2006 psychologist’s report, to which I referred in paragraph 24 above. The August 2009 report expressed the hope that Mr L would be able to meet the challenges he would face, partly as a result of the skills he had gained from participation in the VOTP program, and partly as a result of the support available to him both from the parole service and other community organisations. Those hopes were put to the test when Mr L was released on parole, in August 2009.
MR L’S 2009 PAROLE LIBERTY
43. It was a condition of Mr L’s parole that he not live at his parents’ home. Two of his elder brothers were already living with his parents. They were also on parole, and one of them had only recently been released from prison. Their presence was thought to present a risk of re-offending that was best for Mr L to avoid. Consequently, after his parole release Mr L was required to live in accommodation provided by a community organisation known as the Community Restorative Centre. However it was inevitable that he would contact both his parents, and his brothers. They were in fact very supportive and encouraging. Within a few weeks he was spending significant periods at his parents’ home. Some little time later the formal restrictions on his living at home seem to have been relaxed, at least to the extent of permitting him to stay overnight for up to three nights a week. Throughout September and October 2009 Mr L was spending time with at least one of his brothers, who was involved in a personal training business. He was also attending VOTP maintenance sessions at the Parole Service Office, and looking for work. During this period he also began a friendship with, his now fiancée, SVA – to whom I shall refer later in these reasons.
44. By the end of October 2009 Mr L was reported to be frustrated about not having found work, and about being subject to some police attention. But he was described as compliant with his rehabilitation case plan and being supported and encouraged by other members of his VOTP maintenance and outreach group.
45. By mid November 2009 Mr L had found work with his brothers. This was with a scaffolding business carried on by a church friend. That work continued up until just before the 2009 Christmas break. According to Mr L’s eldest brother, they had not been paid for their last couple of weeks’ work. Mr L’s brother hoped they would still be paid, but he observed that some frustration was beginning to affect Mr L. However, despite fraternal encouragement to persevere, and to comply with his parole conditions, by Christmas 2009 Mr L had already lapsed back into heroin use.
46. Precisely when this lapse began is not altogether clear. There was an incident where Mr L overdosed at his parents’ house. His condition so alarmed his father that he called an ambulance. Mr L’s eldest brother was not sure whether this incident occurred before or after Christmas 2009. Mr L himself said it happened after the robbery offence in early January 2010. Mr L’s fiancée SVA, on the other hand, said it happened sometime before Christmas. But it is not clear whether it was something about which she had firsthand knowledge, or only found out afterwards. In a note of an interview on 19 January 2010, when Mr L’s parole officer confronted him Mr L claimed that SVA did not know anything about his drug use. Irrespective of the precise timing of the overdose incident, the fact that Mr L had reverted to heroin use before 2009 was consistent with his own evidence, with police surveillance of Mr L’s activities on 22 December 2009, and with his involvement in the assault and robbery that occurred on that day. Significantly, on 24 December 2009 Mr L provided a urine sample which tested positive for morphine, and thus indicated he was again using heroin.
47. Mr L’s relapse into significant heroin use in December 2009 occurred only a year after he had been formally warned of the risk of visa cancellation, and within 6 months of being commended on his satisfactory completion of the VOTP. Moreover it occurred at a time when he had been substantially re-united with his parents, was being positively encouraged by them and by two of his elder brothers, had support services available from the Parole Service, had secured employment, and had established a relationship with his new girlfriend, SVA. Despite all of this, by early January 2010 Mr L had relapsed into significant heroin use, and was enthusiastically planning and participating in violent crimes necessary to obtain the money he required to sustain that heroin use.
CONTEMPORARY ASSESSMENT OF MR L’S RISK OF RE-OFFENDING
48. The considerations to which I referred in the previous paragraph, viewed against the background of Mr L’s previous conduct and offences, point to a significant risk that Mr L will re-offend in the community after his release on the completion of his current sentences. The underlying considerations that contribute to the reality of the risk – Mr L’s drug addiction, poor impulse control, susceptibility to peer pressure, and his negative “core belief” – were highlighted in the 2006 psychologist’s report, and echoed in the August 2009 VOTP Discharge Report.
49. Mr L contended that in his current circumstances he did not represent a significant risk of future harm. He made three main points:- his attempts to rehabilitate prior to his re-arrest in March 2010, his heightened resolve to reform, particularly given his sense of responsibility to his fiancée SVA and his young son, and the likelihood that, as a result of his elder brothers’ apparently successful rehabilitation, and the scaffolding business they have established, he is unlikely to encounter any future difficulties in obtaining and maintaining stable employment.
50. In relation to employment I accept that, for a time, Mr L had difficulty getting employment after his release in August 2009. I also accept that by Christmas 2009 he had not been fully paid for the work he had done. But I do not think either of these matters can be shown to have played a significant part in Mr L’s return to heroin use at that time. The parole service notes of 8 December 2009 record his sense of satisfaction for having remained patient and eventually obtaining full time work. None of the later contemporaneous records of his discussions with his parole officer record any complaint about not having been paid his wages. Instead there are notes of frequent discussions about the need for Mr L to provide details of his employment, and explanations Mr L offered, in mid January 2010, that he thought he had been put off work until he undertook scaffolding training.
51. In relation to Mr L’s future prospects of employment, Mr L’s brothers’ recently established scaffolding business is a significant matter. It is significant because the apparently successful rehabilitation of at least two of his brothers provides both an example and poignant familial encouragement. It is also significant because it provides a realistic prospect of future income in a supportive work environment, with people who understand, and indeed can empathise with, his strengths, limitations and challenges. This prospect offers apparently more tangible and accessible advantages than those that awaited Mr L on his previous periods of parole release. But I do not accept that this development provides a sufficient basis for satisfaction that Mr L would not continue to be at significant risk of re-offending. The relevant two elder brothers were available to, and encouraging of, Mr L at the time of his 2010 offending, but their support proved insufficient at that time. The hopeful future prospects of their business may be justified, and Mr L’s brothers are indeed confident of its ongoing success. But it has only been recently established. Its real substance, and future prospects, in terms of its ability to provide Mr L with ongoing and satisfying paid employment, and his own willingness to accept the discipline of regular pedestrian employment, remain to be seen.
52. In relation to Mr L’s claim that he had at least re-started his rehabilitation attempts in the latter part of January 2010, it is fair to accept that by about the end of January he had secured a new job at the Flemington markets. No doubt that course was urged upon him by his brothers, his parents and SVA, as well as his parole officer. (All of them were by that time well aware of his relapse into heroin use, although not his recent offences. Indeed the parole service had recommended he go onto an opiate substitute program, and had put him in touch with a counsellor.) By early February 2010 Mr L had started on a program dispensing prescription buprenorphine, which he collected daily from Auburn hospital. By late February 2010 his previous ongoing complaints about being unable to live with his parents and brothers had been overcome practically, if not formally, by the expiry of the lease on the approved accommodation. For much of February 2010 he had in fact gone to live with his parents, and that development was at least tolerated by the parole authorities, in the light of support from Mr L’s mother and the fact that his eldest brother had by then successfully completed his parole period.
53. Despite the apparently constructive nature of the developments to which I have referred in the preceding paragraph, I am not satisfied that any real significance can be attached to these aspects of Mr L’s conduct at that time. As I have recorded earlier, his assertions about motivation to change go back many years, and have regularly been contradicted by his subsequent conduct. Similar apparent contradiction emerges from the fact that opiates were again detected in a urine sample Mr L submitted on 1 March 2010. And, on his own admission, he had “started to dabble in heroin again” some two weeks earlier. That admission suggests he had returned to illicit heroin use at the same time as he was being prescribed buprenorphine, and less than a month after being given a formal warning that repetition of his illicit drug use could result in the revocation of his parole.
54. The questionable significance of Mr L’s claimed attempts at rehabilitation in January and February 2010, is rendered even more doubtful by Mr L’s subsequent history of illicit drug use in prison since March 2010. Mr L recognised that his lack of commitment and motivation, particularly when confronted by stress, had caused his relapses into drug use and re-offending. But his son was born in October 2010, and he claimed that made a major change in his life. He said he needed to give his son the best possible chance of having a good future and a stable home, and with that additional motivation, he was now confident that he would be able in the future to do everything he could to bring that about. This is a claim which may be genuine, despite the absence of any significant tangible evidence of the relationship between Mr L and his son, but the weight that it carries is limited by the recent prison history of Mr L’s continuing illicit drug use.
55. That history starts, relevantly, in May 2010. At that time, and for a few months afterwards, Mr L was on prescription methadone, but wanted to get back onto the buprenorphine program. He attributed his December 2009 return to heroin use partly to financial stress, and partly to contact with old associates. He said that this time in custody he wanted to gain more work skills, because he thought this would have helped him more after his release on parole in August 2009.
56. In fact most of the educational and vocational qualifications Mr L has obtained during his time in custody (see for example paragraph 41 above) appear to have been in the period before August 2009. In March 2011 Mr L was transferred to Parklea prison to commence the maintenance component of the VOTP. In April 2011 he reported feeling very motivated to achieve “a pro-social life”. But in the same month non-prescribed buprenorphine was detected in his urine. He failed three more urine sample analyses during May 2011.
57. Mr L’s full sentence, for his February 2006 assault with intent to rob offence, ended in mid October 2011 (allowing for the time he had been at liberty on parole). But in late September 2011, he belatedly entered guilty pleas in relation to the more recent charges, arising out of his activities in the period from December 2009 to March 2010. Accordingly, he remained in custody.
58. The material relied upon at Mr L’s subsequent sentencing in June 2012 included a forensic psychologist’s report of 30 November 2011. The report recorded him as having a longstanding heroin abuse problem, and a “general psychological malaise”. Unsurprisingly, the psychologist described Mr L’s presentation as clearly depressed and anxious. He thought Mr L had suffered for many years from depression, anxiety and low self esteem. The psychologist identified a number of DSM-IV diagnostic conditions as appropriate descriptions of Mr L’s psychological well being. He described Mr L’s longstanding heroin use and abuse as an addiction for which he would require continuing treatment “both in custody and upon his eventual release”. He also considered that Mr L would need social skills training, and improved communication, to reduce his vulnerability to peer group influence.
59. Mr L apparently told the psychologist that he was motivated to address his drug related activities and associated offending behaviour. In this context he attached some significance to his asserted return to work in late January 2010. He also claimed to be highly motivated by his parental responsibilities to his young son. But, as the psychologist noted in his November 2011 report, the significance of that motivation, or at least confidence in its potential significance, is confounded by Mr L’s subsequent prison discipline record. In his November 2011 report the psychologist noted that Mr L had returned several adverse drug screen test results since his return to custody in early 2010. But he recorded Mr L’s asserted determination to have treatment and his claim, by November 2011, to have ceased all drug use.
60. In a subsequent report of 22 February 2012 the psychologist characterised Mr L’s upbringing as one involving strictly religious and disciplinarian parents. After reciting some incidents the psychologist recited his view that “it would appear that Mr L had no respite from psychological and physical abuse” and considered that this appearance, if it was the reality, offered some explanation for his juvenile offending. However, the psychologist added that this additional information either added little to, and actually tended to reinforce, his previous opinion that Mr L had longstanding psychological problems, including substance abuse, which had significantly adversely affected his judgment and impulse control. The psychologist considered that Mr L would require ongoing psychotherapy.
61. I very much doubt that the criminality evident in Mr L’s juvenile record, which cannot accurately be euphemistically described as mere “acting out” and “shoplifting”, can in any sense be relevantly explained by the parental “strict discipline” the psychologist characterised in his January 2012 report as “abuse”. In the July 2005 report there is a reference to Mr L having run away from home at about the age of 12, because of his parents “strong physical discipline”. In his evidence in these proceedings, Mr L spoke rather of having been abducted (rather than merely having run away from home) by people who exposed him to petty theft. But apart from those references, Mr L himself at no stage in the present proceedings, nor to any significant extent in any of the other reports contained in the corrective services department records, attributes his sustained criminality and misbehaviour as a response to “psychological and physical abuse” sustained or otherwise. Indeed, his most recent, and apparently most serious offences, occurred at a time when he was living with, or frequently associating with his parents, and apparently being strongly supported by them.
62. The plain facts, so readily apparent in Mr L’s history, are that he has a long standing problem of inability and, given the corrosive “core belief” described in the 2006 psychologist’s report, an unreliable motivation, to control either his propensity to significant heroin use or the violent criminality he has employed to sustain it.
63. Mr L’s continuing propensity for illicit drug use is apparent from NSW Corrective Services records. In the period between September 2010 and the end of February 2013 Mr L provided 10 samples for urine testing. On one other occasion (in February 2013) he refused to provide a sample for testing. One of the 10 samples was not tested, and another was found to have been adulterated. Seven of the eight tested samples contained at least buprenorphine, one also contained morphine, and one other tested sample contained methyl amphetamine. None of the substances detected in these tests had been prescribed.
64. Mr L, whilst necessarily conceding the illicit drug use which these tests revealed, claimed that his use of buprenorphine was a positive indicator of his motivation to rehabilitate, because it reflected a deliberate decision to abstain from heroin. I do not accept that this is either a reliable or a significant consideration. First of all, as one of the tests revealed, Mr L certainly resorted to heroin use at the same time that he was using buprenorphine. (And I note he had a similar relapse in February 2010 when he was last at liberty on parole.) Secondly, Mr L conceded that he used heroin during the time of his most recent incarceration (between August 2012 and March 2013) at the John Morony Correctional Centre. Thirdly, buprenorphine and methadone treatment programs were available within the prison system – as is apparent from the note to which I referred in paragraph 55 above. Mr L’s apparent preference for illicit drug use, rather than perseverance with overt and authorised drug addiction programs, is a matter of concern. And that concern is not significantly alleviated by his asserted subjective preference for one form of illicit drug over another.
65. Mr L’s reported drug use, and specifically his conceded heroin use, after August 2012 is particularly concerning. This is because it was at that time he commenced a ten month Intensive Drug and Alcohol Treatment Program (“IDATP”). In December 2012 he was suspected of being involved in standover tactics in the jail, and targeted for drug testing. The testing detected his use of non-prescribed buprenorphine. In late February 2013, just a few days after Mr L wrote his response to the January 2013 Departmental notice of intention to consider cancellation of his visa, crushed tablets, and equipment used to foil accurate urine analysis testing, were found in Mr L’s cell. He admitted ownership of them. Prison records disclose that he refused to provide a urine sample at that time. Mr L agreed, in the present proceedings, that he had not provided a urine sample for drug testing, but he claimed that he had in fact been unable, rather than unwilling, to provide a sample. That explanation is however, of little significance, given the fact that Mr L conceded that he did in fact use heroin during this period, when he was in custody at the John Morony Correctional Centre.
66. Following that incident Mr L was held in segregated custody within the prison, and then removed from the IDATP. But there are still further reports of Mr L being involved in further prison discipline breaches related to the possession or use of illicit drugs. They occurred even after Mr L’s 14 April 2013 further submission in response to the notice of intention to consider cancellation of his visa. In that letter Mr L had asserted his belief that he was coping with stress, worries and depression in a more positive way than by resorting to illicit drug use. But, on my reading of that submission, he not only acknowledged past lapses, but also recognised a continued risk of future lapses. That recognition appears to have been apt. On 4 June 2013 he and another inmate were found in the same cell with three loaded syringes. On this occasion Mr L refused to provide a urine sample. On 6 June 2013 prison officers found another syringe in Mr L’s cell, and an apparently freshly made syringe mark on his arm. He refused to provide a urine sample and was found to have two syringes hidden in his clothing. Mr L conceded, in the course of his evidence in these proceedings, that he had brought these with him, following his transfer from the John Morony Correctional Centre some three months earlier. He had brought the two syringes with him for the purpose of using them should the opportunity arise. This conduct is not, in my assessment, consistent with Mr L having the reliable and hopeful motivation to reform that he asserted in his 14 April 2013 submission.
67. On 14 June 2013 Mr L was involved in another incident when he was in a cell where a syringe was found. Subsequently, in a prison classification review conducted on 6 August 2013 Mr L was described as displaying “utter contempt in relation to abstinence from illicit substance(s) whilst in custody”. The history I have recorded tends to suggest that is an accurate description of Mr L’s behaviour and attitude. It is at least sufficient to cause me to find that I have no confidence in either Mr L’s real ability to reform or in the unlikelihood of his future re-offending.
CONCLUSION ON THE PROTECTION CONSIDERATION
68. I referred in paragraph 31 to the ten specific factors Direction 55 requires regard to in assessing the seriousness of a non-citizen’s offending conduct. Clearly Mr L has engaged regularly in violent crimes, despite previous protestations of an intention to reform. The circumstances of his offences, even though the more recent offences have not involved direct physical injury, have involved dangerous weapons and correspondingly displayed an apparently increased willingness to threaten violence. And given the significant evidence of Mr L’s poor impulse control, there is a real risk that in circumstances of the kind evident in his previous offences, either the premeditated or the impulsive use of those weapons to inflict injury has to be recognised as a real possibility. In addition, Mr L’s most recent relevant offences occurred after he was specifically warned, and on my findings, clearly understood, the risk that further offending presented in relation to the possible loss of his visa status.
69. Even though paragraph 9.1.1 of Direction 55 requires regard to post warning offending in assessing the nature and seriousness of a non-citizen’s conduct, there is scope to regard it as inherently less material to that characterisation than it is to an assessment of the “acceptability” of the risk of future reoffending. On the other hand, the concept of “acceptability”, as adumbrated in paragraph 9.1.2 of Direction 55, requires regard only to two specific elements – the nature of the apprehended harm and the apprehended likelihood of its occurrence. And in highlighting the importance required to be attached to seriously harmful conduct, both paragraphs 6.3(3) and 9.1.2 contemplate that “any risk that it may be repeated may be unacceptable”.
70. The absence of any specific reference to the potential relevance of post warning conduct in assessing the “unacceptability” of harm risks is perhaps consistent with the direction that the absence of a warning cannot weigh in a person’s favour (see paragraph 9.1.1(i). However, Direction 55 does require a decision maker to determine “the extent to which, if at all, any risk of harm should be tolerated by the Australian community”: see paragraph 7(1)(b). This concept of tolerance, and more specifically, of levels of tolerance, is principally linked to the nature and duration of a non-citizen’s participation in the Australian community: see paragraph 6.3(4). But the extent to which tolerance should be extended is not limited to recognition of the relevance of past associations. Where the potential limits of tolerance have been foreshadowed in a previous warning, and impugned conduct has nevertheless been repeated or exceeded, that disregard of explicitly communicated expectations may properly result in the refusal of any further tolerance of a risk that would generally be regarded as unacceptable.
71. In the light of the foregoing I propose to proceed on the basis that Mr L’s post warning offending is relevant in two ways. First of all, the fact that Mr L offended after his previous warning, and after his 13 April 2008 letter, reinforces the conclusion warranted by the other material to which I have referred in these reasons – that he represents a very real risk of re-offending in the future. Second, the fact that Mr L re-offended after his previous warning and acknowledgement materially reduces the extent to which the duration of Mr L’s Australian residence, and his predominantly Australian upbringing, count as significant factors weighing against the exercise of the visa cancellation power.
72. For all these reasons, I consider that Mr L represents a significant risk of future re-offending, and a significant risk of serious harm as a result of any such re-offending. These risks strongly favour cancellation of Mr L’s visa.
MR L’S AUSTRALIAN TIES
73. It is apparent from the dates I outlined in paragraph 1 that Mr L was only three years old when his parents brought the family to Australia. It also apparent that, for some years the family members’ residence entitlement was uncertain and their circumstances understandably difficult. His parents had to strive to provide for a large family in a new country. That was not easy to do. And their necessary work absences from home limited their opportunities to devote to their boys as much time as they would have liked. In addition, the family had to change addresses from time to time, and that involved the boys in changing schools and social networks. Typically they lived in areas where other families had similar difficulties, and many of the influences to which the boys were exposed involved a range of criminality, including theft and drug taking. Mr L described, and his description was corroborated by two of his brothers, a childhood characterised by dysfunction, that was partly contributed to by his parents work absences and substantially adversely influenced by the poor community environments in which they lived. The extent of that latter influence is partly indicated by the fact that all five of the brothers accumulated substantial criminal records, and three of them, including Mr L, are either still serving custodial sentences, or at liberty on parole. Those three have all had their visas cancelled. The eldest of the three, who is six years older than Mr L, and has five children, is involved in the recently established scaffolding business to which I referred earlier. He has for some time been successfully contesting the cancelation of his visa, and his future status has not been definitively resolved. The other brother, who is just over one year older than Mr L, has not challenged the decision to cancel his visa.
74. The difficult family circumstances apparent from the brief description in the preceding paragraph obscures the reality of Mr L’s parents genuine and enduring support for both him, and his brothers. I earlier noted (in paragraph 60) the 22 February 2012 psychologist’s report characterisation of Mr L’s upbringing as one involving strictly religious and disciplinarian parents. If this was expressed as a significant pejorative consideration it is out of step with the observations that consistently appear in the many Probation and Parole Service reports throughout the decade between 2003 and 2013. Those reports consistently refer to Mr L’s early home environment as good or happy and to his parents as caring and supportive. Mr L’s mother gave evidence in these proceedings. Her description of their family circumstances, she and her husband’s perseverance in visiting their sons in jail, and in supporting them on their release, completed a long history of caring parental devotion.
75. Apart from his parents Mr L has his three elder brothers who are currently involved in the scaffolding business to which I have earlier referred. Two of these brothers, who have completed their parole periods and now been in the community for five to six years, gave evidence supportive of Mr L. They testified to their own challenges in re-establishing themselves in the community, and their success to date in so doing. They were both confident that with their example, motivation and the support networks they had been able to establish, Mr L would have a much more supportive and constructive community environment than anything he had previously experienced.
76. Those aspects of Mr L’s immediate family ties in Australia are complemented by the size of his extended family – he has some twenty odd aunts and uncles, fourteen nieces and nephews and thirty odd cousins who live in Australia. His ties are the greater because of the length of his Australian residence, and the fact that he has lived here from a very tender age. In practical reality, it is the only community with which he is familiar. Up to the present time, all of the members of his immediate family live in Australia. Most of them, including his parents and at least two of his brothers, will almost certainly remain living in Australia.
77. A particular aspect of Mr L’s ties to the Australian community is his relationship with his fiancée, SVA. She is about 28, has a Diploma qualification in Information Technology and full time employment with a disability support service conducted by the NSW State Government. They have known each other, initially only as acquaintances, for some years. Their current relationship began shortly after his release from prison in August 2009. They never cohabited, but she became pregnant in early 2010, a fact of which he became aware after his arrest in March 2010. She has visited Mr L regularly during most of his current period of incarceration since his arrest. Sometimes she has visited with their young son, who is now just over 3 years of age. SVA has no intention of joining Mr L in Fiji if he has to return. If that happens, their relationship will end.
78. All of these considerations indicate the strength of Mr L’s Australian ties, and strongly favour his continued Australian residence.
79. However the strength of those considerations is reduced by the facts that (i) he has spent almost the preponderance of his adult years in prison, (ii) his serious offending began in his teenage years, (iii) he has continued to offend, and to display little evidence of sustained capacity to reform, and (iv) he is unable to point to any strong links to the Australian community, other than his own family members, his fiancée and his infant son. Because of the limited periods during which Mr L has been at liberty since May 2002, he has no significant work qualifications or experience.
BEST INTERESTS OF MINOR CHILDREN
80. Mr L has a number of nieces and nephews in Australia. But there was no evidence about the nature of his connection or involvement with any of them. The only minor whose interests have been identified as requiring significant consideration are those of Mr L’s only child, the son to whom his fiancée gave birth in October 2010, some seven months after his arrest.
81. Mr L’s only contact with his son has been limited to occasional prison visits. They have never lived together. Mr L does not have the means to contribute, and has not contributed meaningfully, to his son’s care and development. He professes a high degree of motivation to participate constructively in his son’s development and upbringing. But there is no significant evidence that they currently have any meaningful relationship. That is unsurprising, given Mr L’s son’s tender age and the limitations imposed by Mr L’s continuing incarceration.
82. Mr L’s son’s best interests include the material needs of home, physical and emotional support. All of those needs have been met to date, though not without difficulty, by SVA, and the parents and sister with whom she lives. They are likely to continue to be able to provide that support for the future. It is also in the child’s best interests that his home environment be as comfortable and supportive as possible. Mr L would have a potential contribution to make to that environment. His real capacity to do so, with either financial, physical and emotional support, is doubtful – given the history of his offending and the “general psychological malaise” to which I have referred – but is in the best interests of his son that Mr L has the opportunity to contribute in those ways. He will have the opportunity to contribute financial and emotional support even if he is required to return to Fiji. But contributions of that kind, made from a distance, are inherently unlikely to have the same qualitative significance as those made with an immediate and ongoing physical presence and guidance. For all of these reasons, I accept that, at least at a conceptual level, it is in the best interests of Mr L’s son that he remain in Australia. However I do not accept that I could confidently conclude that his presence would be likely either to contribute to his son’s best interests in any other specific way, or that it would be free of an unacceptable risk of future and serious offending conduct.
OTHER CONSIDERATIONS – EFFECT ON FAMILY MEMBERS
83. Mr L’s visa cancellation, and consequential return to Fiji would be heartbreaking to his parents, and no doubt to his fiancée SVA. It would at least be disappointing for his elder brothers and his son. That is a consequence which is by no means insignificant. But there is no evidence that Mr L’s contributions to the family’s life over many years has not been significantly positive or tangible. There is no evidence that he has provided them with financial support, or other assistance. There is no evidence that either his parents or his brothers are reliant on him to any material extent. There is no evidence that, to date, he has contributed tangibly to SVA or his son. His part in their lives since 2010 has been limited to prison visits and, presumably, phone calls. To the extent that he is motivated, and welcome, to pursue contact with them in the future, he will be able to communicate with them from Fiji. They will also be able, should they so choose, to visit him there.
OTHER CONSIDERATIONS – MR L’S PERSONAL CIRCUMSTANCES
84. Mr L has no familiarity with Fiji. Returning there, and attempting to establish himself, will no doubt be challenging and difficult. But he still has family connections there – some uncles and aunts and a number of cousins. He is not familiar with any of them. But he can reasonably expect, according to the evidence his mother gave, that he would be welcomed as part of the extended family, and assisted, according to their available means, in establishing himself in Fiji.
DETERMINING ACCEPTABLE RISK
85. Mr L’s past offences, particularly his most recent offences in 2010, were serious. Any repetition of them carries a readily appreciable risk of grave injury. The risk of Mr L re-offending is real and, in the light of many assessments identifying his long standing drug addiction, negative “core belief” and poor impulse control, is significant. In these circumstances there are good grounds to exercise the visa cancellation power by regarding as determinative, the primary consideration of protection of the Australian community.
86. The weight of that protective consideration has to be assessed against the significance not only of Mr L’s Australian ties, but also the best interests of his young son. Those matters count against the cancellation of his visa. The task of determining where the balance between these, essentially countervailing, considerations should be struck is a matter of impressionistic evaluation, neither without difficulty nor reasonably open to only one conclusion.
87. My assessment is that the visa cancellation power in this instance should be exercised by preferring the purpose of protecting the Australian community from harm. Mr L’s past conduct, despite ample opportunity, and professed motivations, to reform precludes any degree of real satisfaction that Mr L is unlikely to re-offend, and to do so in a serious way. If he re-offends, he can expect custodial sentences even longer than those he is currently serving. In these circumstances, I am not at all satisfied that there is a sound basis to conclude that Mr L is likely to fulfil a significant parental role with his son. Conversely, I am satisfied that SVA has both the means and the determination to provide well for her son. I am also satisfied that he will be welcomed and sustained within their wider family membership that will remain in Australia.
88. I accept, and I have endeavoured to recognise fully, that it is a harsh step to deny Mr L continued residence in the country in which he has spent almost all of his formative years. There are numerous instances where the harshness of such an exercise of the visa cancellation power has been remarked upon with significant disfavour: see for example Pochi v Macphee (1982) 151 CLR 101 at 115; Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152. Nevertheless, previous decisions have rejected the notion that the proper exercise of the visa cancellation decision should be influenced either by the limited availability of the deportation power in ss 200 – 203 of the Migration Act 1958 (see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566) or by the notion that Australia owes a non-citizen some kind of obligation to continue the privilege of Australian residence where that residence has involved either the predominant part, or the whole, of their minority: see Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [12] and Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998) at [50]-[52]. In this situation the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said:
… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
89. Those considerations of comparative importance include full recognition of the additional harshness involved in require Mr L to leave his immediate and extended family. Finally, it is a large step to deny a father and son the benefit of living together and sharing the joys, and the travails, of ordinary family life.
90. But the apparent harshness of these steps is mitigated by the knowledge of the warning that was given to Mr L in 2008, and, as I have endeavoured to indicate earlier in these reasons, his full awareness of the significance of that warning. It is also mitigated by Mr L’s repeated inability, or unwillingness, to live out the motivations to reform that he has expressed in the past, and repeated in these proceedings. Because of the unreliability of Mr L’s past professions of his desire to reform, the promptness with which he has re-offended, and the consistently remarked upon qualities (drug addiction, poor impulse control, vulnerability to peer pressure and negative “core belief”) which underlie his risk of re-offending, I do not have any degree of real satisfaction that Mr L would be likely to contribute meaningfully, reliably and consistently to the kind of family life that would be in his son’s best interests. I consider it rather more likely that Mr L is at risk of visiting upon his son, SVA, and the Australian community, a future at least punctuated, if not typified, by uncontrolled drug addiction and violent criminality. In those circumstances, the preferable course to take is to exercise the visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by Mr L re-offending.
DECISION
91. The decision under review is affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .......[sgd].................................................................
Associate
Dated 7 January 2014
Dates of hearing 9 and 10 December 2013 Applicant In person Solicitors for the Respondent Mr L Leerdam, DLA Piper Australia Schedule
Summary of custody and liberty periods - adult life
| Date | Description | Sentence | Start | End Dates | ||
| Event | Sentence | (Months) | Non parole | Sentence | ||
| (approx) | Total | |||||
| 29 May 02 | At liberty (on parole) | 30 May 03 | ||||
| 19Jan 03 | 31 Oct 03 | Robbery in company | 48 | 19 Jan 03 | 18 Jan 05 | 18 Jan 07 |
| 18 Aug 05 | At liberty (on parole) | 18 Jan 07 | ||||
| 24 Jan 06 | 8 Feb 06 | Drive with mid-range prescribed concentration of alcohol | NA | |||
| 24 Jan 06 | 8 Feb 06 | Unlicensed driver | NA | |||
| 19 Feb 06 | Arrested - parole revoked - serves balance of sentence | |||||
| 18 Feb 06 | 28 Aug 06 | Assault with intent to rob, armed with offensive weapon | 60 | 18 Aug 06 | 17 Feb 09 | 17 Aug 11 |
| 24 Aug 09 | At liberty (on parole) | 17 Aug 11 | ||||
| 3 Jan 10 | 1 Jun 12 | Robbery armed with dangerous weapon | 72 | 2 Nov 10 | 1 May 14 | 1 Nov 16 |
| 2 Mar 10 | 1 Jun 12 | Sell prohibited firearm | 48 | 2 May 10 | 1 Nov 12 | 1 May 14 |
| 3 Mar 10 | Arrested - parole revoked - serves balance of sentence | |||||
| 21 Feb 12 | 10 Aug 12 | Possession of restricted substance | 6 | 10 Aug 12 | 9 Feb 13 |
0
10
0