LOMAS and Minister for Immigration and Citizenship

[2011] AATA 575

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 575

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2334

GENERAL ADMINISTRATIVE DIVISION		)
Re		Daniel LOMAS

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date19 August 2011

PlaceSydney

Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in the Applicant’s favour so that his visa is not cancelled.

.......................[sgd].......................

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions

LEGISLATION

Migration Act 1958 (Cth): s 501

CITATIONS

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

19 August 2011 Mr R P Handley, Deputy President          

1.      The applicant Mr Lomas has applied to the Tribunal for a review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

BACKGROUND

2.      Mr Lomas was born in New Zealand in July 1979 and is a New Zealand citizen.  His father is an Australian citizen who, at the time of his son’s birth, was serving in the New Zealand Army.  His mother is Fijian.  His father left the Army and returned to Australia on 24 June 1988 with his family.  When Mr Lomas first arrived in Australia on 24 June 1988, aged 8, he was granted a Class TY Subclass 444 Special Category (Temporary) visa permitting him to reside in Australia.  He has not departed Australia since.

3.      Mr Lomas was convicted of a significant number of criminal offences as a juvenile in the period July 1993 to September 1997, including assault, stealing, break, enter and steal, larceny, and robbery.  For some of these offences he was placed on control orders for periods varying from three to nine months and on probation for periods of up to two years.

4.      As an adult, Mr Lomas has been convicted in respect of robberies and sentenced on three occasions:

·3 December 1999 – three counts of robbery in company and one count of robbery armed with an offensive weapon – sentenced to 5 years and 3 months imprisonment with a non-parole period of 3 years and 3 months;

·2 May 2003 – robbery in company – sentenced to 7 years imprisonment with a non-parole period of 5 years (confirmed on appeal against sentence on 5 February 2004); and

·1 December 2010 – robbery in company - sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months.

5.      Mr Lomas was released from prison on parole on 18 June 2011 and taken into immigration detention at Villawood.

6.      By letter dated 20 April 2007, the Department of Immigration and Citizenship (the Department) notified Mr Lomas that any further criminal convictions or misconduct could result in consideration being given to the cancellation of his visa.

7.      By letter dated 15 February 2011, the Department notified Mr Lomas of its intention to consider cancellation of his visa and invited him to respond.  Mr Lomas responded on 28 February 2011 and also completed a Personal Details Form for the Department.  By letter dated 18 March 2011, the Department invited Mr Lomas to comment on further information it had obtained in relation to his case and Mr Lomas made a further submission dated 21 March 2011.

8.      On 3 June 2011, a delegate of the Minister decided to cancel Mr Lomas’ visa and he was notified of this by letter dated 6 June 2011.  On 15 June 2011, Mr Lomas applied to the Tribunal for a review of the decision.

RELEVANT LAW AND POLICY

9. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

10.     Mr Lomas has been sentenced to terms of imprisonment of more than 12 months on three occasions, detailed above.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Lomas’ visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

11.     The ‘primary’ considerations in Direction No 41 are set out in paragraph 10(1):

10.The primary considerations

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

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

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

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

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

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

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

(Original emphasis.)

12.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

Primary Considerations

13.     The ‘primary’ considerations referred to by the Minister in Mr Lomas’ case are the protection of the Australian community, whether he was a minor when he began living in Australia, the length of time he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of any relevant children.

the protection of the australian community

14.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

The seriousness of the conduct

15.     With regard to the seriousness of Mr Lomas’ conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction No 41).  Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41 are assault, robbery and serious theft.  Mr Lomas has been convicted of the offences of common assault, larceny, stealing, robbery and aggravated robbery.

16.     Paragraph 10.1.1(3) of Direction No 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

17.     In sentencing Mr Lomas in the District Court of NSW on 2 May 2003, Judge Blackmore noted that Mr Lomas had pleaded guilty to the offence of robbery in company committed on 16 April 2002, and had asked that another offence of robbery in company committed on 19 September 1998 be taken into account.  Both offences were bank robberies, the later, April 2002 robbery committed when Mr Lomas was on parole, at the Commonwealth Bank in Martin Place, Sydney when $20,932 was stolen.  In the earlier, September 1998 robbery, from a National Australia Bank branch at St Leonards, $34,000 was stolen after threats of violence had been made.

18.     Judge Blackmore described the offences as serious, noting that the 2002 offence was committed while Mr Lomas was on parole for an earlier conviction for the offence of robbery in company, that it involved the threat of violence, and that it was committed “in a bank on bank tellers, who are obviously vulnerable to such offences”.  Judge Blackmore noted that Mr Lomas had been a drug user and had sought assistance from a drug and alcohol counsellor while in custody.  He recommended that, ultimately, Mr Lomas be given the opportunity to undertake a residential rehabilitation program such as that provided by Odyssey House.  On the basis that there might be prospects for his rehabilitation, Judge Blackmore set a non-parole period of five years and a parole period of two years, with a recommendation that he be permitted to attend a residential rehabilitation program and that he accept drug and alcohol counselling.

19.     Mr Lomas’ 2010 conviction was in respect of an offence committed on 28 July 2007 for which he was arrested and charged on 19 August 2008.  He was convicted after a jury trial in which he was found guilty on 29 September 2010.  Mr Lomas denied that he had committed the offence, which involved the robbery of a Travelex shop at Burwood Shopping Centre.  A total of $83,385 in various currencies was stolen.  One of the men involved in the robbery hit the sales consultant on the back of the head with his hand in an endeavour to get her to hurry up.  A scarf recovered from the scene was found to have a high yield of DNA matching Mr Lomas’ profile. 

20.     In sentencing Mr Lomas in the District Court of NSW on 1 December 2010, Judge Flannery said this was “a serious example of the offence of robbery in company”.  The offence was planned and aggravated by the fact that Mr Lomas was on parole when he committed the offence.  Her Honour commented that it could “be readily concluded that for the victim the circumstances would have been terrifying”.  She considered Mr Lomas’ prospects for rehabilitation were reasonable, noting caution because Mr Lomas continued to deny his guilt for the offence which was committed not long after he was released from custody.  Mr Lomas would need professional assistance upon his release.

21.     Mr Lomas said that when he was released from prison on 22 April 2007, he went to live in a halfway house along with seven other young men who had been released from prison and had “many issues”.  He described it as a “toxic environment” (letter to the Department dated 21 March 2011).  He was aware of the robbery of the Travelex shop and acknowledged that he was in the vicinity of the shop at the time of the robbery but said he was not either of the two men who committed the robbery. 

22.     There is no doubt that the offences of robbery for which Mr Lomas has been convicted are very serious, and that some have involved violence or the threat of violence.  Mr Lomas acknowledged this and responsibility for his actions, and said “I am truly remorseful for every crime I have committed”.  He admitted “to living a criminal lifestyle as a result of being stuck in a cycle of offending behaviour relating to early childhood issues, substance abuse and limited education”.  He said that when he moved with his family from New Zealand to Australia in June 1988 he had difficulty adjusting to school, and his father, thinking this would be best for his son, sent him to live with his uncle, the Reverend Warwick Lomas.  The time he spent living with his uncle and his uncle’s family was a happy and settled one and he did well at school.  However, he felt guilty about leaving his family and so he returned to live with them.  Then, at various times, he ran away from home and became a street kid, “doing crime” as a way of surviving.

23.     The Reverend Warwick Lomas gave evidence in support of his nephew.  He said Mr Lomas spent about two and a half years living with his family, between the age of about 10 and 12.  He was doing very well at school and he and the Reverend Lomas’ daughter got on well together.  But Mr Lomas’ mother put pressure on him to return home.  Reverend Lomas said it was a dysfunctional family to which his nephew returned which was difficult for him to deal with. 

The risk that the conduct may be repeated

24.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Lomas’ previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders. 

25.     Apart from various misconduct charges while Mr Lomas was in prison in the period 1999 to 2001, the NSW Department of Corrective Services records only one misconduct charge in the last 10 years, on 30 December 2008 for fighting.  An Immigration Report prepared for the Department by the Probation and Parole Service dated 17 March 2011 notes that Mr Lomas “admitted his guilt and explained that the fight had occurred following disagreement after a football match”.  The Report states that Mr Lomas had been subject to four random urinalysis tests during his period of incarceration all of which had returned a negative result.  Mr Lomas said that he had also had urinalysis tests while on parole, none of which had been positive. 

26.     The Immigration Report states that the fact that Mr Lomas has been transferred between a number of correctional centres during his incarceration has impacted on his ability to access programs and services.  In a response to the Department dated 21 March 2011, Mr Lomas said that he had not had the opportunity to participate in any courses because of frequent movements between correctional centres: “I have been through 15 jails in 30 months; on average I have spent two months in each jail.”  The Immigration Report states that, where possible, Mr Lomas had obtained employment during his incarceration.  During his longest period of employment in custody, while he was at Long Bay Correctional Centre for seven months, he was recorded as “hard working and a valuable member of the team by custodial management staff”.  The Report concluded:

With the availability of appropriate intervention in the community and stable post release plans including considerable support to assist in his re-integration, a recommendation has been made for his release at the expiration of his non parole period.

27.     On 26 November 2010, Mr Lomas told the District Court that after he was released on parole in April 2007, he worked as a steel fixer for between four and six weeks and then commenced a ‘Pathways to Employment’ course at TAFE which he completed after eight to ten weeks.  He also moved out of the halfway house and lived with a friend.  In September 2007, Mr Lomas found work as a builder’s labourer working for Mr P for whom he continued to work until he was arrested in August 2008.  Mr Lomas said he enjoyed working for Mr P – he enjoyed carpentry and building and would like to undertake an apprenticeship with Mr P if he is released into the community.  In November 2007, Mr Lomas met Mr P’s niece, Ms M, they started “seeing each other” and, in February 2008, they started living together.  

28.     Mr Lomas said that during his time in the community in 2007/2008, he turned his life around and now believes he is a different person.  He said:

2.5. … during my time in the community, I did the following things that I believe indicate a degree of rehabilitation: I commenced a positive loving relationship; I obtained employment; I obtained my driver’s licence; I signed a lease for the first time in my life; acquired a bank loan to set up a home with my partner; became active in the local community including joining the local football team.  I had a ‘normal’ life – I learnt how to cook, how to shop for fresh food and enjoy ordinary weekends with my partner [Ms M] and our friends.

2.6 Significantly I have also been drug free for eight or nine years.  I have not had a single positive urinalysis in over 8 years.  In my 16 months in the community I never had a single positive urinalysis and again believe this evidences the fact that I have made significant changes in regards to substance abuse.

29.     Both Mr Lomas and Ms M talked about their loving relationship which, I am satisfied, is a strong one, having endured Mr Lomas’ incarceration and, in particular, his being moved from one correctional centre to another after relatively short periods in most.  Mr Lomas has also developed a good relationship with Ms M’s daughters, Ms S who is aged 19 and Ms H who is aged 12.  Generally, I was impressed by the degree of support from members of both Mr Lomas’ and Ms M’s families who provided letters of support and came to the hearing to give evidence.  In particular, Mr Lomas spoke of Ms M’s uncle, Mr P, as his mentor. 

30.     In evidence to the District Court, Mr P, who runs a construction company employing a staff of about 20 generating a turnover of about $6m a year, confirmed that he would offer Mr Lomas a job on his release from custody and would take him on as a mature-age apprentice.  He said he considered Mr Lomas trustworthy.  Mr Lomas had been involved in about seven projects where he was working in people’s homes.  Mr P had explained to them Mr Lomas’ history and all of them supported him. 

31.     Mr P also provided an undated letter of support for Mr Lomas to the Department in about February or March 2011.  In evidence to the Tribunal, Mr P spoke warmly of Mr Lomas, whom he had first employed as a casual labourer.  Mr P said he found Mr Lomas a “diligent and trustworthy employee”.  Mr Lomas quickly established himself as a valuable and trusted member of a team with whose members he got on well, who learned “like a sponge”, was responsive to the hierarchy in the business and did an excellent job.  Mr P told me of how Mr Lomas had come to him after a few months of working for him to tell Mr P of his criminal history.  Mr P let this gradually be known throughout the company and clients for whom Mr Lomas worked were also made aware of this.  Mr P has continued to support Mr Lomas throughout his incarceration and detention and confirmed he would re-employ him if he is released into the community, and would offer him a mature age apprenticeship as a carpenter to enable him to acquire the necessary qualifications to work as a builder.  Mr P said that having known Mr Lomas for about four years, he knows how solid he is as a person.

32.     Mr P’s sister, who is the General Manager of Mr P’s company, also provided a letter of support to the Department, dated 22 February 2011, in which she described Mr Lomas as a diligent and willing employee, a popular and helpful member of staff who had gained a position of trust within the company and had been given commensurate responsibilities. 

33.     Reverend Lomas described his nephew as being “chalk and cheese to what he was”.  He is a different person.  His relationship with Ms M has been very important to Mr Lomas whose maturity is now evident in his wanting to work and support Ms M and her children.  Mr Lomas’ parents also spoke of how their son has changed and matured, settled down, and obtained employment.  His mother said he had become “like a family man” in supporting Ms M.  Mr Lomas’ sister also referred to her brother’s maturity and the positive effect of his relationship with Ms M.

34.     The Minister has provided the Tribunal with a Psychiatric Report from Dr Matthew Jones, General and Forensic Psychiatrist, dated 2 August 2011.  Dr Jones noted that Mr Lomas maintained his innocence in respect of his most recent conviction but accepted that his DNA might have got onto the scarf since he had lived with three others who had been actively involved in crime.  Dr Jones stated:

From a psychiatric point of view, Mr Lomas does not suffer from any specific psychiatric disorder … he has a history of polysubstance use and a historical period of dependence on opiates for only a few months.  He does not appear to have any active substance or alcohol issues but this is clouded by the fact that he has been fairly consistently in some form of detention or incarceration.  From a personality perspective, Mr Lomas would be diagnosed as having an anti-social personality disorder, bearing in mind that this diagnosis relies mainly on a behavioural inventory.

35.     Dr Jones told me that his diagnosis of an anti-social personality disorder was based on the history of Mr Lomas’ past misconduct and impulsiveness.  He noted that he had inferred this from Mr Lomas’ history and that it was hard to make such a diagnosis after only one assessment. Dr Jones said that given Mr Lomas’ long and consistent criminal history, early educational and family disruption, early age onset of drug and alcohol use, early association with criminal peers and only one period of accommodation, employment and educational stability, there was a moderate risk of his reoffending with a violent crime.  However, “if his relationship were to continue, his employment were to be successful and gainful and his abstinence from drugs and controlled alcohol drinking were to continue, his long term risk would be reduced.” 

36.     Dr Jones said Mr Lomas “may benefit from regular drug and alcohol counselling with regards to relapse prevention and psychoeducation.”  He noted that Mr Lomas’ relationship had withstood more than two years separated by a “movement-rich incarceration” and was stable for a year prior to that.  There was also a history of reasonable work performance and future job prospects.  When I asked Dr Jones to comment on Mr Lomas’ evidence that he has been drug free for the past eight years, he said this is a positive factor in assessing risk, along with his relationship with Ms M, his employment and the stability of his situation in the community.  He indicated that supervision of Mr Lomas in the community would also be protective of further risk.

37.     A Psychological Assessment Report dated 10 November 2010, was prepared by Laura Durkin, Psychologist, for Legal Aid in relation to Mr Lomas’ sentencing on 1 December 2010.  Ms Durkin stated that in a psychometric assessment, Mr Lomas achieved a score which placed him in the average range of intelligence.  His psychological profile was within the normal range and “was not indicative of emotional distress and/or psychological disturbance in any domain”.  She noted, at p 6 of her report, that while Mr Lomas has a long history of antisocial conduct, he:

… does not present as inherently antisocial (which is consistent with prior testing) and in recent years has apparently made significant changes in his life to lower his risk of reoffending, and this includes a change in his perspective. 

38.     Ms Durkin said that Mr Lomas appeared to have established a strong support network while in the community, was reportedly succeeding in his work and in establishing, for the first time, a significant intimate relationship, had distanced himself from his former lifestyle and avoided those with whom he had previously associated who were connected with the criminal justice system, and had not returned to illicit substances.  He had thereby ameliorated most of the factors which have previously led to recidivism.  Speaking of the offence committed on 28 July 2007, she noted:  

… while the current offence presents as an anomaly in what otherwise seems to have been a positive trajectory, it may be that Mr Lomas is somewhat unaware of the trigger points for problematic behaviour.  To that end, Mr Lomas may benefit from interventions which further support his reintegration to a prosocial lifestyle and help him to maintain the progress he has achieved while increasing his insight.

She said that Mr Lomas is likely to be at an increased risk should his social supports, work and housing stability be removed.

39.     As noted above, Judge Flannery considered the prospects for Mr Lomas’ rehabilitation as being “reasonable”.  At p 8 of her sentencing remarks, she said that because the positive changes Mr Lomas had made in his life post-dated the commission of the July 2007 offence, “I am prepared to accept on balance that extending leniency to him now may very well ensure that he is not seen in the Criminal Justice System again”. However, Mr Lomas would need professional assistance upon his release.

40.     Mr Lomas has, nevertheless, a history of breaking judicial orders from a young age.  More recently, his last two convictions have been for offences committed while he was on parole.  However, I am satisfied that he has remained drug free for the last eight years, I accept his evidence that alcohol is not a problem for him, and that over the course of the last few years he has turned his life around with significant support from his close family, employer and friends.  He has had few opportunities for undertaking rehabilitation programs while in prison because of being moved from one prison to another on a regular basis after relatively short stays. 

41.     In my view, while there is still a risk of Mr Lomas reoffending given his past history of serious offences and failure to comply with judicial orders, he represents much less of a risk to the Australian community than formerly.  The evidence of Dr Jones and Ms Durkin indicates that this risk will be minimised if Mr Lomas is able to maintain a stable relationship, stable employment and stable accommodation.  I am satisfied from Mr Lomas’ evidence and that of his partner, Ms M and her family that the prospects for this are good.  Thus, while the first primary consideration favours the cancellation of Mr Lomas’ visa, it must, in the circumstances be weighed against other ‘primary’ considerations and having regard to the relevant ‘other’ considerations. 

whether a minor on beginning to live in australia

42.     The second primary consideration relevant in Mr Lomas’ case relates to his being a minor when he first began living in Australia.  Direction No 41, paragraph 10.2(1) states:

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

43.     Mr Lomas arrived and began living in Australia in June 1988, aged eight.  He has lived in Australia for just over 23 years, spending most of his formative years here. I accept his evidence and that of his parents and sister that all his family are in Australia except some of his mother’s family who are in Fiji where she was born.  Mr Lomas’ father is an Australian citizen who served in the New Zealand Army for nearly 20 years before returning to Australia after completion of his service.  There are no family members in New Zealand.

44.     Thus, I am satisfied that Mr Lomas has close ties to the Australian community – indeed his ties appear to be exclusively to the Australian community - and this primary consideration therefore weighs against cancellation of his visa.

length of time ordinarily resident

45.     The second primary consideration relevant in Mr Lomas’ case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41.  This states that “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”. 

46.     As stated above, Mr Lomas arrived in Australia at the age of 8 on 24 June 1988.  He was first charged with offences as a juvenile on 9 June 1993 when he had been in Australia for nearly five years.  In my view, given that five years had passed since Mr Lomas’ arrival and he was still a juvenile at this time, this consideration should be regarded as a neutral consideration because of his immaturity.

best interests of the children

47.     Direction No 41, paragraph 10.4.1(1) states that this consideration applies only if the child is or would be under 18 at the time the decision, in this case to cancel Mr Lomas’ visa, is made.  Paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if a child remains with its parents”.

48.     The Direction sets out a number of factors to be considered in ascertaining the best interests of the child.  These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.

49.     Mr Lomas has no biological children.  However, he contends that he has parental responsibilities in respect of his partner, Ms M’s children.  Ms M has two daughters from a previous relationship, aged 19 and 12.  The older daughter’s interests may not be taken into account as part of this primary consideration because she is an adult.  Her interests may, however, be taken into account as an ‘other’ consideration, discussed below.  With regard to Ms M’s younger daughter, Ms K, Ms M’s evidence is that she had agreed with her former partner, with whom Ms K lives currently in Brunswick Heads, that Ms K will live with Ms M in Sydney during her High School years.  The children’s father and his current partner have confirmed this arrangement in an undated letter of support for Mr Lomas sent to the Department in February or March 2011. 

50.     Ms M told me that Ms K has been accepted into Randwick Girls’ High School in January 2012.  Ms M said that without Mr Lomas’ financial support, and the ability to afford accommodation (Ms M was made redundant in October 2010 and is currently unemployed and staying with her cousins in the lower Blue Mountains), she does not know how she will manage to send Ms K to this High School.  Ms M said over the course of many visits to Sydney, during the course of which her daughter has always visited Mr Lomas in custody, Ms K has developed a strong relationship with Mr Lomas and, currently, they talk on the phone every morning when Ms K is walking to school.  Mr Lomas estimated that Ms K has been to visit him about 40 times during school holidays and when she has travelled to Sydney to spend the weekend with Ms M.  He said they have formed a strong relationship. 

51.     Ms K provided an undated letter of support to the Department in February or March 2011 in which she said:

Daniel and my Mum are looking forward to getting married and I’m looking forward to moving to Sydney for my high school years and living with Daniel and my Mum, I am also looking forward to the possibility of a baby brother or sister.

52.     Mr Lomas also states he has a close relationship with his sister’s five children, who are aged 8 to 15.  Mr Lomas’ sister confirmed this in an undated letter sent to the Department in February or March 2011 and in oral evidence at the hearing. Four of the children also sent letters to the Tribunal stating that they love their uncle.

53.     Whilst Mr Lomas’ sister’s children may well love their uncle and be saddened if he were to have to return to New Zealand, the nature of their relationship has been marked by long periods during which Mr Lomas has been in prison and is likely to have had little meaningful contact with them.  In my view, their interests should not be considered a primary consideration. 

54.     With regard to Ms M’s daughter, Ms K, her relationship with Mr Lomas is one which is of relatively recent origin and while it may have developed and strengthened over the past three years, ongoing contact has been limited to prison visits, telephone calls and letters, albeit that there may have been many of these.  I am not satisfied from the evidence that if Mr Lomas has to return to New Zealand, this would have more than a short term effect on Ms K.  Thus, I do not consider her interests a primary consideration within the contemplation of Direction No 41.

OTHER CONSIDERATIONS

55.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Lomas’ case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Lomas and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

56.     Mr Lomas’ parents, who are now divorced, both live in Australia as do his younger brother, who was also born in New Zealand, and his older sister, who was born in Fiji, and her family which includes five children.  As mentioned above, his father is an Australian citizen and his mother is a Fijian citizen.  In February and March 2011, Mr Lomas’ family, including his cousin, provided letters of support for Mr Lomas to the Department.  His parents and the Reverend Lomas state that all Mr Lomas’ family live in NSW and he has no family in New Zealand.  I am satisfied from the evidence that Mr Lomas has absolutely no links with New Zealand which he and his family left when he was aged 8 and to which he has never returned.

57.     Mr Lomas’ father, who is retired and living on a pension, said he would not be able to go to New Zealand to see his son if he has to return there.  It would mean never seeing him again.  Mr Lomas’ sister said it would be “unimaginable if Mr Lomas was in a different country” to the rest of their family. 

58.     Other friends have also provided the Department with letters of support for Mr Lomas.  Those who know his partner, Ms M, refer to Mr Lomas’ relationship with her and that with her children as being caring and supportive.  All Mr Lomas’ family also speak fondly of Ms M and of the positive effect their relationship has had on Mr Lomas.  Ms M provided the Department with an undated letter in February or March 2011 and gave evidence at the hearing.  She said Mr Lomas told her about his criminal history about a week after they met and she has always trusted him since.  He asked her to marry him about seven months after they met and, before Mr Lomas was arrested in August 2008, they were planning to marry and still hope to do so.  They have coped with the difficulties of the past few years and continued to plan for the future.

59.     Ms M said that since she was made redundant from her job as a sales representative selling digital software in November 2010, she has been unable to afford her own accommodation and, as stated above, is currently staying with her cousins.  She has just finished a business course and would like to start a home based family day care business.  She and Mr Lomas want to have a baby together and care for her daughter Ms K while she is attending High School.  Ms M said she would not be able to go with Mr Lomas to New Zealand if he has to leave Australia because she would not leave her children behind.  In her letter to the Department, she said sending Mr Lomas to New Zealand would mean “Our future and plans of sustaining our family would be in ruins.”

60.     Mr Lomas said he has also established a close relationship with Ms M’s older daughter, Ms S who is now aged 19.  In an undated letter to the Department sent in February or March 2011, Ms S said Mr Lomas brought “an abundance of love, support and emotional clarity” into their lives and brought her “immediate family closer and helped us build solid and honest relationships”.

61.     With regard to other considerations, I note Mr Lomas, who is aged 32 and appears to be in good health, plans to undertake a carpentry apprenticeship if he is released into the community.  I note also that by letter dated 20 April 2007, Mr Lomas was formally advised that any further misconduct could result in further consideration being given to the cancellation of his visa.  Mr Lomas said he did not pay as much attention to this letter as he should have done, believing, at the time, that as he had always considered himself Australian, cancellation of his visa would never eventuate.  Spending time in immigration detention and seeing people separated from their families and loved ones has reinforced his priorities in life “and assured me that I will never commit another offence”. 

Conclusion

62.     While the protection of the Australian community favours the cancellation of Mr Lomas’ visa, I am satisfied from the evidence that the likelihood of his being fully rehabilitated is very good, given the strong support he has from his family and from his fiancé, Ms M’s family, and their friends.  With that support, I am confident that there is very little risk of Mr Lomas reoffending.  I also note that if he is released into the community, he will be on parole for the balance remaining of the 2 years and 6 months since his release from prison.  There is also the counter-veiling primary consideration of Mr Lomas arriving in Australia as an eight year old, spending his formative years here, and of all his family and other ties being to the Australian community. 

63.     Except for the fact of Mr Lomas having previously received a formal warning, the ‘other’ considerations also weigh strongly in Mr Lomas’ favour. He has no links whatever with New Zealand and to return him there would, in my view, cause him significant hardship.  It would also cause significant hardship to Ms M.  She and Mr Lomas plan to marry and have a child, but she states she would not leave her two children from her previous relationship in order to join him in New Zealand.  Hardship would also be caused to Mr Lomas’ parents and other members of his family who, while they might be able to maintain contact with him by post, telephone and electronic means, seem unlikely to visit him except on rare occasions. 

64. Thus, having had regard to both the primary and other considerations, my overall conclusion is that these considerations favour exercising the discretion under s 501(2) of the Act in favour of Mr Lomas by not cancelling his visa.

Decision

65. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in the Applicant’s favour so that his visa is not cancelled.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: ..................................[sgd]...........................................
  Nicholas Olson, Associate

Date of Hearing  11 August 2011
Date of Decision  19 August 2011
Solicitor for the Applicant  Self-represented
Solicitor for the Respondent  I Temby, Minter Ellison