LEON SHEERAN and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 138
•5 March 2012
[2012] AATA 138
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5397
Re
LEON SHEERAN
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 5 March 2012 Place Brisbane The Tribunal affirms the decision under review.
................[Sgd]..................................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a citizen of New Zealand – first entry to Australia in 1981 when aged two years for a period of one year – re-entry to Australia in 1992 until deported in 2000 – re-entry to Australia under false passport in 2006 – cancellation of visa in 2006 – cancellation set aside by Migration Review Tribunal in 2007 - cancellation of visa in 2007 – cancellation set aside by Migration Review Tribunal in 2008 – extensive criminal history for serious offences prior to deportation in 2000 - extensive criminal history for serious offences after re-entry to Australia in 2006 - applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – best interests of children and other primary and relevant considerations also favour cancellation of visa – preferable decision is that visa be cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 109, 116, 200, 499, 501(2), 501(6), 501(7)
Child Protection Act 1999 (Qld) s 59
Children, Youth and Family Act 2005 (Vic) s 162
CASES
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
SECONDARY MATERIALS
Direction [No. 41] - Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
5 March 2012
THE APPLICATION
Leon Sheeran applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 14 December 2011, cancelling his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in s 501(7)(c) of the Act, namely, “the person has been sentenced to a term of imprisonment of 12 months or more”. It is not disputed that Mr Sheeran has been sentenced to terms of imprisonment of more than 12 months such that he has a substantial criminal record under s 501(7) of the Act. Neither is it disputed that, accordingly, Mr Sheeran does not pass the character test. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister has issued Direction 41[1] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act. Part A of the Direction provides directions on the application of the character test set out in s 501(6) of the Act. Part B provides directions on the primary considerations, which must be taken into account in every case,[3] and other considerations, which are to be taken into account where relevant,[4] in determining whether it is appropriate in the specific circumstances of the case to exercise the discretion in s 501(2) of the Act.
[1] Direction [no.41] – Visa refusal and cancellation under s501, dated 3 June 2009, commenced on 15 June 2009.
[2] See s 499(2A) of the Act.
[3] See para 9 of the Direction.
[4] See para 9 of the Direction.
The objectives of the Act are set out in para 5.1 of the Direction which reads:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
The following matters are stated in the Direction by way of “General Guidance”:
5.2 General Guidance
…
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
…
Paragraph 10 of the Direction sets out the primary considerations as follows:
(1) …
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
It is common ground that non-refoulement obligations do not arise in this matter.
Paragraph 11 of the Direction sets out the other matters which, if relevant, must be considered. These are not primary considerations and, generally, should be given less weight than that given to primary considerations.[5] Of potential relevance in this matter are:
·family ties, the nature and extent of any relationships (para 11(3)(a));
·any links to the country to which Mr Sheeran would be removed (para 11(3)(d));
·hardship likely to be experienced by Mr Sheeran or his immediate family members lawfully resident in Australia (para 11(3)(e)); and
·whether Mr Sheeran has been formally advised in the past by an officer of the [respondent] about conduct that brought him within the deportation provisions or the character provisions of the Act (para 11(3)g)).
EVIDENCE
[5] See paras 11(1) and (2) of the Direction.
Mr Sheeran and documents before the Tribunal
Mr Sheeran was born in New Zealand. He was first in Australia from 13 March 1981 until 18 June 1982. He returned to Australia on 14 April 1992 under a Class TY Subclass 444 Special Category (Temporary) visa and was deported to New Zealand on 24 March 2000 under s 200 of the Act. He entered Australia again on 5 March 2006 on a false passport under which he was granted the visa. On 10 April 2006, the visa was cancelled under s 109 of the Act but this decision was set aside by the Migration Review Tribunal on 23 July 2007. On 14 August 2007, the visa was cancelled under s 116 of the Act but this decision was also set aside, on 3 April 2008, by the Migration Review Tribunal.
Mr Sheeran’s father lives in New Zealand but his three sisters and his mother, along with other relatives, live in Australia. While in Australia, Mr Sheeran became partnered with Ms Sheeran with whom he had three children: (“Child 1”); (“Child 2”); and (“Child 3”). He agreed that their relationship was a volatile one and that this was demonstrated by heated arguments between them and by displays of violence by him. He agreed that there were times when his wife was fearful of him. On 19 August 2010, the Southport Childrens Court granted, with the parents’ consent, custody of the three children for a period of 12 months to the Chief Executive of the Queensland Department of Communities (“the Queensland authority”). Ms Sheeran died from a drug overdose on 17 November 2010. On 17 March 2011, the Southport Childrens Court made a child protection order under s 59 of the Child Protection Act 1999 (Qld) granting to the children’s maternal grandmother (“their grandmother”) guardianship of the children until each reaches 18 years of age.
Mr Sheeran agreed that he has the following history of extensive criminal activity in New Zealand as well as in Victoria, Western Australia, New South Wales and Queensland.
On 2 February 1994, Mr Sheeran was convicted in the Melbourne Children’s Court of a range of offences including theft, theft of motor vehicle (multiple charges), armed robbery, assault with intent to rob, unlawful assault, failure to answer bail and possession of prescribed weapon. These resulted in periods of up to nine months in a youth training centre. On 12 May 1994, he was convicted in that court of criminal damage and escape from a youth training centre. On 19 July 1994, he was convicted in that court of offences including burglary, theft, assault, criminal damage and unlicensed driving for which a youth attendance order for nine months was imposed. On 12 December 1994, he was convicted in that court of offences including stealing, theft of a motor vehicle, reckless driving and unlicensed driving for which a youth attendance order for six months was imposed. On 10 March 1995, he was convicted in that court of offences including going equipped to steal (multiple charges), burglary (multiple charges), theft of a motor vehicle (multiple charges), resisting police, possession of drug of dependence, reckless driving and unlicensed driving (multiple charges) for which periods of two months and nine months in a youth training centre were imposed. On 17 July 1995, he was convicted in that court of escaping from lawful custody for which a period of three days in a youth training centre was imposed.
As an adult, Mr Sheeran was convicted in the Melbourne Magistrates Court on 24 January 1996 of theft of a motor vehicle, theft from a motor vehicle and escaping from lawful custody for which a period of three months’ imprisonment was imposed. On 4 October 1996, he was convicted in the Melbourne County Court of burglary, theft of motor vehicle, theft, going equipped to steal and unlicensed driving for which periods of up to four months imprisonment were imposed. On 23 May 1997, Mr Sheeran was convicted in the Prahran Magistrates Court of burglary, theft of a motor vehicle, theft, reckless driving and unlicensed driving for which was imposed a community based order of 300 hours over 12 months. On 21 December 2010, the Werribee Magistrates Court issued a warrant for Mr Sheeran’s arrest for his contravention of a family violence intervention order.
In Victoria, on 11 April 2006, Mr Sheeran was convicted in the Sunshine Magistrates Court for presenting a false document[6] as well as failing to answer bail, driving whilst disqualified and stalking. He was sentenced to three months imprisonment. In that court on 29 November 2007, a fine was imposed for possession of cannabis. On 19 November 2009, he was convicted in that court of intentionally causing injury and threat to inflict serious injury and was sentenced to 4 months imprisonment.
[6] This was related to the false passport on which he re-entered Australia.
In the District Court of Western Australia, Mr Sheeran was convicted on 30 March 1999 of robbery (sentenced to two years six months imprisonment); assault to prevent arrest (12 months imprisonment); stealing (12 months imprisonment); and two counts of stealing a motor vehicle (12 months imprisonment - cumulative). The total period of imprisonment imposed at that time was three years and six months.
In New South Wales, Mr Sheeran was convicted in the Tweed Heads Local Court on 19 July 2010 of being armed with intent to commit an indictable offence for which he was sentenced to imprisonment for two months and twenty two days.
In Queensland, on 21 October 2011, he was convicted in the Richlands Magistrates Court of housebreaking, possession by night of instruments of house breaking, trespass, breach of bail condition and entering premises with intent to commit an indictable offence for which he was sentenced to a period of 6 months imprisonment. On 22 December 2011, Mr Sheeran was convicted in the Southport District Court of dangerous operation of a vehicle causing grievous bodily harm and leaving the scene of the incident without obtaining help. The events occurred in May 2010 and he was sentenced to a period of 4 years imprisonment.
After his deportation to New Zealand in 2000 and until his re-entry to Australia in 2006, Mr Sheeran was convicted in the Masterton District Court on 1 August 2000 of offences including possession of cannabis, receiving property and unlawful assembly to disturb the peace for which community service orders were imposed. In that court on 18 December 2000, he was convicted of theft ex person, failing to appear, wilful damage and receiving property for which he was sentenced to concurrent periods of imprisonment of up to six months. On 16 January 2003, he was convicted in that court of three charges of burglary by night of property valued at over $5,000 as well as two charges of injuries with intent to injure and was sentenced to three years imprisonment (concurrent) and one year imprisonment (cumulative), respectively.
Mr Sheeran is currently serving his period of imprisonment at the Woodford Correctional Centre (“Woodford”) because of his conviction, on 22 December 2011 in Southport District Court, for dangerous operation of a motor vehicle. He agreed that he had been involved in a motor vehicle accident which resulted in serious injury to the woman driving another car. He said that he was remorseful about what he had done and agreed that he had fled the scene only to be apprehended two weeks later. He has been in Woodford since November 2011 and said that he has not taken up any of the rehabilitation programs available there. He said that he completed such courses during earlier periods of imprisonment and continues to recall the principles that he became aware of at those times. He said that he had no present intention of undertaking any further rehabilitation courses.
In relation to his children, Mr Sheeran said that, apart from seeing his eldest son in July 2011, he has not seen them since November 2010. Mr Sheeran said that he communicates with the three boys by letter or by phone from time to time. He said that his last phone contact was about five months ago while he was on bail and that he had written a letter to them two to three weeks ago. He agreed that he was not to have contact with his youngest son because of the protection order but said that he had breached that on occasions to see him. He described some learning difficulties with the two younger boys but was satisfied that these were being taken care of by their grandmother and that the three boys had settled well with her in regional Queensland. He described them as being content and happy with their grandmother whom he said was a good carer. He said that he loved his boys and wanted to be reunited with them. He denied that, since 2006, he has not provided regular parental care for his children and said that he tried to be with them whenever he could. He said that this would continue after his term of imprisonment was finished and if he were to remain in Australia. He described himself as having job skills for truck driving, fork lift operation and concreting and as developing cooking skills while in prison. He believed that he would be able to obtain employment on release from prison.
Mr Sheeran referred to file notes which record that, in September 2009, he doused his wife and Child 3 with kerosene and threatened to set them on fire. He said that this did not happen and that those matters had not been the subject of criminal proceedings. He agreed that, on 19 November 2009, he was convicted of intentionally causing injury and threat to inflict serious injury and that these charges related to events in September 2009 when he “slapped” his wife and threatened her but not with any kerosene.
Mr Sheeran described his sisters as being supportive of him but that, as they live in Melbourne, he has not been able to see them with any frequency. He said that family members came to Queensland when his wife died in November 2010 and that, if he lived closer to them, he would see them on a daily basis. Mr Sheeran’s father lives in New Zealand and is in ill health as a result of a stroke. He is not in close contact with him or with any other relatives on his father’s side of the family.
Statements by family members
Mr Sheeran’s mother and his sisters provided statements to the Tribunal. They support the need for Mr Sheeran to remain in Australia for the benefit of his children and offer assistance to Mr Sheeran in relation to accommodation on release from prison. They state that Mr Sheeran’s father is in ill health and that there is no family support available to Mr Sheeran in New Zealand. The children are described as struggling emotionally since the death of their mother.
Other documentation
In evidence were documents generated by Western Australian and Queensland courts as well as the government authorities responsible for child protection in those states.[7]
[7] Queensland Department of Communities (Children Safety Services) (“the Queensland authority”) and Victorian Department of Human Resources (Child Protection) (“the Victorian authority”)
In sentencing Mr Sheeran to prison in 1999, the judge of the District Court of Western Australia described the offences[8] as involving “a pattern of lawlessness, a pattern of violence and pattern of complete disregard for other people and incidentally for other people’s property”. His Honour noted “fairly consistent violence” involving striking, punching, kicking and biting. He described this as “very serious conduct” and “appalling violence” which the complainants should not have had to put up with.
[8] See para 5 above.
Also in evidence was a report, dated 6 July 1999, relating to Mr Sheeran’s behaviour while he was in prison prior to his deportation in 2000. His conduct was described as being far from satisfactory and to his having a volatile nature with no respect for anyone in authority. It referred to advices that he was non-compliant, abusive and aggressive towards staff.
Reports from the Victorian authority implicate Mr Sheeran in violent conduct. On 4 August 2007, Ms Sheeran went to a police station with a domestic violence support worker and reported that she had been assaulted by Mr Sheeran and had been forced to stay for a period in a motel. On 9 September 2009, it noted an incident involving assault on Ms Sheeran comprising punches to her face and stomach and dousing of her and Child 3 with kerosene at that time. Police responded to the incident and arrested Mr Sheeran. The report described two earlier assaults on Ms Sheeran by Mr Sheeran which were witnessed by the three children. On that occasion, Child 1 called the police for assistance. On 17 June 2010, the authority recommended to the Melbourne Children’s Court that protection applications be granted under the s 162 of the Children, Youth and Family Act 2005 (Vic). However, it noted that Ms Sheeran and the three children had moved to Queensland where Ms Sheeran’s mother lived and recommended the matter be left to be dealt with by the Queensland authority.
A report from the Queensland authority in April 2010 included summaries of interviews with Child 1 and Child 2 where they said that they did not know where their father was and could not remember the last time they saw him. Also included were reports relating to a visit, on 9 November 2010, by Child 1 and Child 2 to Mr Sheeran at the Arthur Gorrie Correction Centre where he was then in custody. The children were accompanied by officers of the Queensland authority and a summary of the visit was prepared by them. It includes references to Mr Sheeran sending letters to the boys regularly as well as cards on special occasions such as birthdays and Christmas. The boys confirmed that they had not previously seen Mr Sheeran for 12 months. The report describes a close association between the boys and Mr Sheeran during the visit and assessed the visit as a positive one.
The Queensland authority provided a report, dated 7 April 2011, on Mr Sheeran. It refers to advices from the Victorian authority, after an investigation in April 2010, that there had been five substantiated child protection notifications in relation to Mr Sheeran’s family relating to violence between Mr and Ms Sheeran as well as matters involving financial issues, poor school attendance by the children and substance abuse by Ms Sheeran. The Victorian authority recorded that the children had suffered emotional harm from their witnessing of family violence perpetrated by Mr Sheeran. The Queensland authority conducted an investigation in April 2010 and it was noted that the children disclosed information regarding fights they had witnessed between their parents and that the children displayed significant anxiety around their father finding them and their mother. In a further investigation in July 2010 as a result of concerns about Ms Sheeran’s behaviour, the Queensland authority’s assessment was that neither Mr nor Ms Sheeran was willing or able to protect the children from harm and sought a Child Protection Order granting custody to the Chief Executive of the Department for 12 months. This was granted by the Southport Magistrates Court on 19 August 2010.
The Queensland authority’s report noted that, on 8 August 2010, the children had been flown to Longreach into the provisional care of the maternal grandmother. The report noted that Ms Sheeran died on 7 November 2010 and the Department assessed that the long term guardianship of the children should be with the children’s grandmother in regional Queensland. The report described serious concerns about Mr Sheeran’s capacity to care for the children because of his history of incarceration, his absence of experience in parenting the children, his domestic violence and the Victorian Intervention Order which named Child 3 as the respondent and which had effect until 2019. In seeking the order for long term guardianship to the children’s grandmother in the Southport Magistrates Court on 17 March 2011, a report from the authority read:
…
Although Mr Sheeran has indicated a willingness to parent the children. It has been assessed he is unable to protect the children from harm as he is currently incarcerated and has been responsible for causing significant harm to the children.
Mr Sheeran poses a significant risk to the children as he has a history of domestic violence towards the children’s mother which has been witnessed by the children. Mr Sheeran has had no therapeutic intervention in addressing this concern. Mr Sheeran currently has a Victorian intervention order against him that lists Ms Sheeran and his youngest son … as the respondents. This order was taken as a result of Mr Sheeran dousing both respondents in kerosene and threatening to set them alight. Mr Sheeran’s criminal history details a list of significant violent and serious crimes that have resulted in Mr Sheeran being incarcerated on numerous occasions. Mr Sheeran has exhibited unpredictable and aggressive behaviour that has resulted in him committing serious crimes. The children have had limited contact with Mr Sheeran throughout their lives and given the trauma they have suffered as a result of their mother and primary care giver’s death it is assessed that without departmental officers facilitating their father’s contact with them would be at significant risk of harm.
The children’s grandmother consulted child psychologist Browin Hockey and, on 15 February 2011, an officer interviewed Ms Hockey in relation to the three boys. The officer reported that Ms Hockey had advised that Child 1 had not wished to attend counselling but that she had been seeing Child 2 and Child 3 twice per month since November 2010. Her opinion was that the boys were well settled with their grandmother and that she would like to see them remain with her because they were settled and feel safe in her care. The officer reported that the children’s grandmother had the ability and had indicated that she was willing to care for the three boys until each was 18 years of age. On 17 March 2011, the Southport Childrens Court made, in uncontested proceedings, a child protection order under s 59 of the Child Protection Act 1999 (Qld) granting to the grandmother guardianship of the children until each reaches 18 years of age.
SUBMISSIONS
Mr Sheeran submitted that the reason for seeking review of the deportation decision was so that he could maintain contact with his sons. He submitted that, when his current prison term is completed, he will be doing his best to have them returned to his care rather than have them remain under the guardianship of their grandmother. He submitted that this was more important now than previously because of the death of Ms Sheeran. He doubted that the children would come to New Zealand to live and submitted that the only way for him to play a role in the children’s lives was for him to remain in Australia.
Mr Sheeran referred to the documentation provided to him by the respondent at the time of his deportation in 2000. He said that, at that time, he had not been provided with information about the prospects of having that deportation decision reviewed.
For the respondent, Mr David McLaren submitted that the overarching objective of the Direction was the protection of the Australian community and that, in Mr Sheeran’s case, it would be achieved by affirming the deportation decision. He submitted that Mr Sheeran’s history of offences involving violence as well as the number of convictions over a long period point to the likelihood of repetition of his offending. He noted that previous rehabilitation programs had been ineffective and submitted that there was significance in that some of Mr Sheeran’s offences involved disrespect for authority in relation to breaches of bail, breaches of intervention orders and unlicensed driving. As to the arrival of Mr Sheeran in Australia as a minor, Mr McLaren submitted that, when he was in Australia from April 1992, he was involved in frequent offences as a juvenile. He submitted that, in his youth, he was frequently in detention and that this weighed against the establishment of proper relationships with the Australia community. As for the length of time in Australia before he committed offences, Mr McLaren noted that Mr Sheeran was in Australia in 2006 for a matter of weeks before he was before the Sunshine Magistrates Court for serious offences. Mr McLaren submitted that the best interests of Mr Sheeran’s children would be served by upholding the deportation order and allowing them to get on with their lives in the settled environment established with their grandmother.
Mr McLaren acknowledged that Mr Sheeran had extended family in Australia but submitted that he had not had a close association with them because of their residence in different parts of Australia and that, in any event, the extent to which and the means by which he relates to them while he is in Australia can be continued when he is in New Zealand. He also submitted that this was a case where Mr Sheeran had been deported once and, on two occasions, had two visa cancellations, because of his conduct, overturned by the Migration Review Tribunal and, yet, continued to commit criminal offences.
Mr McLaren submitted that a consideration of all of the relevant factors pointed to the need to affirm the decision under review.
CONSIDERATION
I had some concerns about the veracity of Mr Sheeran as a witness. He was prepared to obtain false documentation to enable him to re-enter Australia in 2006. Also, though he accepted that his criminal convictions were as set out above, Mr Sheeran sought to minimise the nature of some of his offences. For example, he referred to the conviction on 21 October 2011 for offences including housebreaking. He said that, on that occasion, he was at home on bail and was visited by a friend who encouraged him to go out with him. At a friend’s suggestion, they climbed onto the roof of a building and were there when police arrived and apprehended them. However, Mr Sheeran was reminded that the convictions at that time included being in possession of housebreaking implements. Mr Sheeran then admitted that he and the others had proceeded to the building with the intention of breaking into it.
Mr Sheeran was convicted on 19 November 2009 of intentionally causing injury and threat to inflict serious injury. Material in evidence refers to an assault by Mr Sheeran on his wife and Child 3 by dousing them with kerosene. However, his evidence was that the convictions were not based on that but rather on physical assaults. I note that the material before the court when guardianship was granted to the children’s grandmother included reference to the kerosene dousing incident. Those proceedings were not contested by Mr Sheeran and I am satisfied that the incident occurred in the manner which appears frequently in the Queensland and Victorian authority documentation.
I have noted Mr Sheeran’s submission that he was not properly informed by the respondent in 2000 of his rights of review of the deportation order made at that time. I reject that contention. In evidence were documents relating to Mr Sheeran’s deportation in 2000. These included a copy of the letter sent to Mr Sheeran on 5 October 1999 in which he was advised of his deportation. It makes reference to review by the Tribunal. Annexed to it is an acknowledgement signed by Mr Sheeran that he had been informed about having the deportation decision reviewed by the Tribunal.
Primary consideration (a): Protection of the Australian community
Under para 10.1 of the Direction, due consideration is to be given to the objectives set out in para 5(1) of the Direction[9] and to the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay. These include “(a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated”.
[9] See para 5 (above).
In assessing the seriousness and nature of the relevant conduct, para 10.1.1(1) provides:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
Paragraph 10.1.1(2) lists “examples of offences and conduct that are considered serious”, including, in so far as relevant:
…
(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
…
(i) ancillary offences in respect of offences and conduct that are considered serious including
(i) convictions for attempting to commit an offence;
…
(m) serious theft.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly provide:
(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
…
In assessing the risk that Mr Sheeran’s conduct may be repeated, para 10.1.2 of the Direction provides:
(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
Before he was deported in 2000, Mr Sheeran committed offences against the person including assault, assault with intent to rob, robbery and armed robbery; property offences including theft, motor vehicle theft, criminal damage and burglary; as well as reckless driving, unlicensed driving, escaping from custody and drug offences. Many of the offences occurred when he was a juvenile but, nonetheless, they resulted in his being confined to various detention centres. The offences committed as an adult in Western Australia were serious. This was reflected in the comments of the sentencing judge who described a pattern of lawlessness, violence and complete disregard for other people or their property and also identified fairly consistent violence involving striking, punching, kicking and biting. He described Mr Sheeran as being engaged in very serious conduct and appalling violence. The serious nature of his offences at that time was also reflected in the sentence of three years and six months imprisonment.
On his re-entry to Australia in March 2006 following his deportation in 2000, Mr Sheeran was convicted in Victoria in April 2006 for presenting a false document[10] as well as failing to answer bail, driving whilst disqualified and stalking. He was sentenced to three months imprisonment. On 29 November 2007, a fine was imposed for possession of cannabis. On 19 November 2009, he was convicted of intentionally causing injury and threatening to inflict serious injury and was sentenced to 4 months imprisonment. On 21 October 2011, he was convicted of housebreaking, possession by night of instrument of house breaking, trespass, breach of bail condition and entering premises with intent to commit an indictable offence for which he was sentenced to a period of six months imprisonment. On 22 December 2011, Mr Sheeran was convicted for offences which occurred in May 2010. These were dangerous operation of a vehicle causing grievous bodily harm and leaving the scene of the incident without obtaining help. He was sentenced to a period of four years imprisonment. I am satisfied that the history of offences in Australia since Mr Sheeran’s re-entry to Australia in 2006 discloses a series of serious offences as provided for in para 10.1.1(2) of the Direction. It is significant that they occurred over the brief time-frame of four years with the first of them occurring within weeks of his arrival in Australia. Again, the seriousness of these offences is reflected in the periods of imprisonment imposed.[11]
[10] This was related to the false passport on which he re-entered Australia.
[11] See para 10.1.1(3) of the Direction.
I am also satisfied, having regard to the matters listed in para 10.1.2 of the Direction, that there is a high risk of Mr Sheeran re-offending when he is discharged from his present term of imprisonment. His criminal activity continued throughout his period in Australia before he was deported in 2000; it continued while he was New Zealand from 2000 to 2006; and it re-commenced shortly after his re-entry to Australia in March 2006[12]. His offences include breach of bail conditions and, indeed, the offences for which he is currently in prison were committed whilst on bail. That willingness to breach judicial orders is also seen in his disregard of the disqualification of his driver license and two offences relating to escape from lawful custody. I am also satisfied that his behaviour in obtaining a false passport to re-enter Australia points to the likelihood of Mr Sheeran re-offending.[13]
[12] See Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [23].
[13] See Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [16].
Primary consideration (b): Whether Mr Sheeran was a minor when he began living in Australia
For this consideration, para 10.2 of the Direction reads:
(1) If the person was a minor[14] when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.
[14] A minor is a person who is less than 18 years of age: see para 6(1) of the Direction and s 5(1) of the Act.
The applicant was only two years of age when he first entered Australia. He remained here for only 15 months before returning to New Zealand. He was then resident in Australia from April 1992, at age 13 years, until he was deported in 2000 at the age of 21 years. While that second period corresponds with some of his formative years, I am satisfied that they were not such as to establish ties and linkages to the Australian community. His criminal conduct was displayed throughout his minority, resulted in months of detention and continued into his adult years.
Primary consideration (c): The length of time that Mr Sheeran has been ordinarily resident in Australia prior to engaging in criminal activity
Paragraph 10.3(1) of the Direction reads:
(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.
Mr Sheeran gained re-entry to Australia in 2006 on a fraudulent passport. Therefore, his re-entry in March 2006 was, itself, tainted with criminality. Further, he was before the courts for sentencing within a few weeks for his fraudulent passport as well as for other offences concluding driving whilst disqualified and stalking. He was in Australia for a very brief period before he engaged in criminal activity.
Primary consideration (d): Relevant International obligations
Paragraph 10(1)(d) of the Direction refers to Relevant International Obligations and para 10.4 of the Direction provides that, if there is a child in Australia who is potentially affected by a visa cancellation decision, decision-makers must have regard to the best interests of the child. In so far as relevant, para 10.4.1 of the Direction reads:
(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
...
(3) If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given individual consideration.
(4) Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
In considering the best interests of the child, para 10.4.1(5) sets out the following factors:
(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c) the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;
(d) the child’s age;
(e) whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f) the likely effect that any separation from the person would have on the child;
(g) the existence of other persons who already fulfil a parental role in relation to the child;
(h) the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i) the time that the child has spent in Australia;
(j) any Court orders relating to parental access and care arrangements;
(k) any known wishes expressed by the child;
(l) whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m) the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, education or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.
The decisions of the Migration Review Tribunal referred to above were based, in part, on considerations concerning the impact on Mr Sheeran’s children of his deportation from Australia. Since then, Mr Sheeran has continued to engage in criminal conduct involving property offences, assault, going armed and dangerous operation of a vehicle resulting in grievous bodily harm. His conduct has resulted in at least three periods of imprisonment in New South Wales and Queensland including one term of four years for which he is currently incarcerated. Also, the circumstances of the children have changed considerably. Their mother died in 2010. Court interventions have resulted in the children being placed, first, into the care of the Queensland authority and then into the guardianship of their grandmother. Those court decisions were based on evidence provided by officers of the Department after detailed investigations as revealed in the many reports in evidence before me. These demonstrate that Mr Sheeran’s association with his children has been a troubled one involving him in violence which he has perpetrated in their presence. His periods in prison have been frequent and confirm the view of the authorities that he has had little opportunity to carry out the role of a parent and, indeed, no opportunity to do so as the sole parent. He is precluded from seeing Child 3 until 2018. His evidence was that he saw Child 1 briefly in mid-2011 but he has not seen the other boys since late 2010. Significantly, the psychologist has described the arrangement with the children’s grandmother in favourable terms and reported that she has expressed a willingness to retain responsibility until the boys reach adulthood. Mr Sheeran’s evidence was that he was satisfied with those arrangements. There would seem to be no reason why Mr Sheeran cannot continue his contact with his sons with letters and other means of communication.
Other considerations
I have identified the other relevant considerations in para 11 of the Direction to be taken into account in Mr Sheeran’s situation. These are:
·family ties, the nature and extent of any relationships (para 11(3)(a));
·any links to the country to which Mr Sheeran would be removed (para 11(3)(d));
·hardship likely to be experienced by Mr Sheeran or his immediate family members lawfully resident in Australia (para 11(3)(e)); and
·whether Mr Sheeran has been formally advised in the past by an officer of the [respondent] about conduct that brought him within the deportation provisions or the character provisions of the Act (para 11(3)g)).
Paragraph 11(3)(a) of the Direction refers to family ties and the nature and extent of any relationships. It requires consideration of the extent of disruption to Mr Sheeran’s family, business or other ties to the Australian community. Mr Sheeran’s father and other relatives on his father’s side of the family remain in New Zealand. Mr Sheeran has an extended family in Australia comprising his mother, sisters, uncles, aunts, cousins and grandparents. On his evidence, they have lived distant from Mr Sheeran for some years, in Victoria and Western Australia, although some members of his family visited Brisbane when Ms Sheeran died. He has remained in contact with them by letters and telephone. The letters written by Mr Sheeran’s mother and his sisters refer to the difficulty he would have in adjusting to life in New Zealand without his Australian family and his sons. While I accept that such adjustment difficulties are inevitable, Mr Sheeran will be able to continue contact with his family and his sons by the usual means of communication over distance which he has employed in recent years.
Paragraph 11(3)(d)) of the Direction requires reference to Mr Sheeran’s links to New Zealand. It identifies situations where the person deported has no significant familial ties or support in that country. Mr Sheeran’s father lives in New Zealand and is in ill health. Mr Sheeran’s evidence was that he is not close to family members on his father’s side of the family. However, Mr Sheeran does have a family base in New Zealand and is no longer a young man in need of substantial support. Certainly, there is no evidence before me to indicate that he would experience psychological difficulties on being deported to New Zealand where he has spent more than half of his life.
Paragraph 11(3)(e) of the Direction refers to hardship likely to be experienced by Mr Sheeran or his immediate family members lawfully resident in Australia in the event of his deportation. This includes reference to whether immediate family members are able to travel to New Zealand to visit Mr Sheeran; the relationship between Mr Sheeran and immediate family members; and whether there is dependence by family members on Mr Sheeran. There is no evidence before me which identifies any level of dependence on Mr Sheeran by his extended family members in Australia. Neither is there evidence on the capacity of those family members to travel to New Zealand to visit him. However, Mr Sheeran has the advantage of being deported to a country in close proximity to Australia with the associated advantages of travel time and travel costs. Mr Sheeran also gave evidence that he is skilled in matters of concreting, truck driving and fork lift operation and that he is developing skills in cooking. These employment prospects vitiate against his experiencing hardship on return to New Zealand.
Paragraph 11(3)(g) of the Direction is concerned with whether Mr Sheeran has been formally advised in the past by an officer of the respondent about conduct that brought him within the deportation provisions or the character provisions of the Act. This is a significant factor in Mr Sheeran’s case. He was deported from Australia in 2000. On two occasions after his unlawful return in 2006, his visa was cancelled and subsequently reinstated by the Migration Review Tribunal. His criminal conduct continued thereafter. I am satisfied that the cancellation documentation sent to Mr Sheeran on three previous occasions, the fact of his deportation in 2000 and the proceedings in the Migration Review Tribunal served to formally advise him as required by para 11(3)(g) of the Direction and that Mr Sheeran was clearly aware of the consequences which were likely to occur in the event that he continued to engage in criminal behaviour in Australia. Those consequences included deportation.
CONCLUSION
Having considered the primary considerations and the other relevant considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.[15]
[15] See Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the primary considerations, I am satisfied that the protection of the Australian community is the most significant in Mr Sheeran’s case. The nature and frequency of Mr Sheeran’s criminal conduct is in stark contrast to one of the objectives of the Act, that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[16] This consideration weighs heavily in favour of cancellation of the visa. His criminal conduct also permeates the second and third of the primary considerations in that much of Mr Sheeran’s juvenile years were spent engaged in criminality with associated periods of detention and his criminal conduct commenced within weeks of his re-entry into Australia. Both of those considerations also weigh in favour of cancellation of the visa. The fourth primary consideration which pertains to the best interests of the child is more finely balanced than are the other three considerations. However, I am satisfied that this also weighs in favour of deportation. Mr Sheeran has had little contact with his children and is unable to overcome this in the case of his youngest son because of a court order which will last for a further six years. Importantly, the children are settled with their grandmother and the psychologist reported favourably about those arrangements.
[16] See para 5.1 of the Direction (set out in para 5 above).
As regards the other considerations relevant under para 11 of the Direction, Mr Sheeran’s knowledge of the consequences of the continuation of his criminal conduct weighs heavily in favour of cancellation of the visa. The considerations of family ties, links to New Zealand and hardship matters weigh no better than neutrally from Mr Sheeran’s perspective.
I am satisfied that the primary considerations weigh heavily in favour of cancellation of the visa and that this clearly outweighs all other relevant considerations in this case which, at best, are neutral to the extent that they impact on the issue of Mr Sheeran’s deportation. I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.
DECISION
The Tribunal affirms the decision under review.
I make an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that documents in the file of this application and any transcript of the hearing of this application not be published to any person apart from the respondent and his legal advisers and any legal advisor of the applicant.
I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
......................[Sgd]..................................
Associate
Dated 5 March 2012
Date(s) of hearing 21 February 2012 Applicant In person Solicitors for the Respondent David McLaren
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