Long and Minister for Immigration and Citizenship
[2008] AATA 285
•9 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 285
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0308
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN EDWARD LONG Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date9 April 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
............[S D Hotop]..........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - Transitional (Permanent) visa – applicant a United Kingdom citizen – applicant first arrived in Australia in March 1975 and has lived in Australia continuously since 1981 when aged 17 years – applicant convicted of numerous offences in Australia including possession of heroin with intent to sell or supply, armed robbery in company, stealing motor vehicles, aggravated burglary – applicant’s visa cancelled – applicant does not pass character test – discretionary power to cancel applicant’s visa – primary considerations – protection of Australian community and expectations of Australian community favour cancellation of visa – best interests of children favour non-cancellation of visa – other relevant considerations on balance favour non-cancellation of visa – weighing and balancing all considerations – primary considerations and other relevant considerations on balance favour cancellation of visa – decision under review affirmed
Migration Act 1958 (Cth), s501(2)
Direction – Visa Refusal and Cancellation under section 501 – No21
Long v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 610
REASONS FOR DECISION
9 April 2008 Deputy President S D Hotop Introduction
1. Brian Edward Long (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 1 November 2007, cancelling his Transitional (Permanent) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
Background
2. The applicant was born in October 1963 in England and is a citizen of the United Kingdom. He first arrived in Australia with his parents and 3 sisters in March 1975 but in December 1975 they returned to the United Kingdom. In March 1977 they again arrived in Australia but again returned to the United Kingdom in June 1979. The applicant, however, returned to Australia in March 1981 (when he was 17 years of age) and, apart from a visit to the United Kingdom from December 1986 to February 1987, he has resided in Australia since that date.
3. The applicant’s criminal history in Australia comprises numerous convictions during the period from 1977 to 2005. The most serious convictions, for which he received custodial sentences , are as follows:
· on 5 November 1987 he was convicted of 1 count of supplying heroin and 1 count of possessing a quantity of heroin with intent to sell or supply, and he was sentenced to a total term of 3 years’ imprisonment;
· on 22 October 1992 he was convicted of 6 counts of breach of probation in respect of a sentence of 2 years’ probation which had been imposed upon him on 11 February 1992 following his conviction of 6 counts of manufacturing heroin, and he was sentenced to 12 months’ imprisonment on each count to be served concurrently;
· on 28 March 1994 he was convicted of 1 count of robbery whilst armed in company, and he was sentenced to 7 years’ imprisonment;
· on 7 July 2000 he was convicted of 2 counts of stealing a motor vehicle and 5 counts of stealing, and he was sentenced to a total term of 5 years’ imprisonment;
· on 9 August 2005 he was convicted of 2 counts of aggravated burglary, and he was sentenced to a total term of 4 years and 8 months’ imprisonment.
The Legislation
4. Section 501(2) of the Act provides:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
5. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction as presently in force, namely “Direction – Visa Refusal and Cancellation under s 501 – No 21” (“the Direction”), was given by the respondent on 23 August 2001, with effect from that date. The Direction comprises two parts. Part 1 deals with the application of the “character test” set out in s 501(6) of the Act. Part 2 deals with the exercise of the discretionary power to refuse, or to cancel, a visa under, respectively, subs (1) or subs (2) of s 501 of the Act, in the event that the relevant person does not pass the “character test”. The Direction will be referred to more fully later in these reasons.
The Evidence
6. The evidence before the Tribunal comprised:
· the “G Documents” (G1-G23, pp 1-170) lodged by the respondent (Exhibit R1), and a bundle of Department of Corrective Services documents regarding the applicant comprising 4 prison reports completed in 2007 and a “Moving on from Dependencies Program” Completion Certificate dated 25 January 2007 (Exhibit R2);
· the statement of evidence of the applicant, dated 11 March 2008 (Exhibit A1); and
· the oral evidence of the applicant and of Ann Long, Chelsea Long, and Catherine Long.
Analysis
Application of the “character test”
7. By reason of the abovementioned sentences of imprisonment which have been imposed upon the applicant, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act is enlivened in this case
Should the discretionary power to cancel the applicant’s visa be exercised in this case?
8. Part 2 of the Direction specifies various considerations to which all relevant decision makers, including this Tribunal, must have regard when exercising the discretion to decide whether or not a visa should be cancelled. Part 2 of the Direction also addresses the matter of the appropriate weight that is to be given to the specified considerations. Paragraph 2.2 of the Direction states:
“The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”
The primary considerations
9. Paragraph 2.3 of the Direction sets out the following three primary considerations:
“(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
The first primary consideration – the protection of the Australian community
10. Paragraph 2.5 of the Direction specifies, non-exhaustively, three factors which are relevant to an assessment of the level of risk of harm to the community in the event of a non-citizen’s being allowed to enter or remain in Australia, namely:
“(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
The Tribunal will now consider each of those relevant factors in the context of the present case.
The seriousness and nature of the conduct
11. Paragraph 2.6 of the Direction lists, in subparas (a) – (o), examples of offences which are considered by the Government to be “very serious”. These include (relevantly):
“(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
· persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
· the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
· offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;”
“(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;”
“(l)serious theft (including ‘white collar’ crimes):
· such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;”.
12. Paragraph 2.7 of the Direction states:
“It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
…”
13. In sentencing the applicant to, in effect, a term of 7 years’ imprisonment for the offence of armed robbery in company on 28 March 1994, Scott J said:
“… On 8 March 1994 you pleaded guilty to an indictment which alleged that on 12 August 1992 at Kwinana you and others stole from [RVH] and another with actual violence a quantity of cash the property of BP Employees Credit Co-operative Ltd and that at the time you and others pretended to be armed with a dangerous weapon, namely, a pistol, and that you and the others were in company with each other and, at the time, you and the others used personal violence to [RVH] and [ACP].
The facts are that two of your co-accused, Blaskett and McLean, were friends of your co-accused Rasmussen who worked at the Kwinana Refinery where the relevant credit union was situated. Blaskett and McLean obtained from Rasmussen details of the layout of the relevant area of the refinery, together with other details necessary for an armed hold-up to be effected.
You were recruited by McLean to help out in the robbery as Blaskett did not want to become directly involved. The provider of the information, Rasmussen, was not known to you. You assisted in preparing for the robbery by going to the area the night before the planned offence and assisting to cut a hole in the perimeter fence to assist your getaway.
On that night, after cutting the hole in the fence, the vehicle in which you were travelling was stopped by the police and some bolt cutters were found in the boot. At that time you and your co-offender were considerably intoxicated. On the morning of the robbery, Blaskett drove you and the other co-offender to an army surplus store to obtain two pairs of handcuffs and some gloves for use in the robbery. Having thus equipped yourselves, you were driven to the scene by Blaskett and you and McLean put nylon stockings over your faces and entered the credit union.
Once inside, you threatened the two employees, [RVH] and [ACP], with the replica firearm and forced [ACP] to unlock the safe. There was no money in the safe and you demanded to know where the money was and proceeded to obtain the money from the front desk. [ACP] was forced to lay face down on the floor and [RVH] was forced to her knees. Both were then handcuffed.
In a victim impact statement [RVH] describes the terror felt by her as she was forcibly handcuffed. She says, ‘I felt fear that I had never experienced before. I remember thinking would I get to see my children again.’ [ACP], in a victim impact statement, says that when he was being handcuffed a knee was placed in his back and he thought he was going to get a bullet in the back. Each of the two victims has ongoing problems from this offence, which this court cannot and will not ignore.
When you and your co-offender left the premises you used the same hole that had been cut the night before and you left the same way as you had entered. After you left, the two employees had to have the handcuffs cut from them. In all, you obtained $46,000 from the robbery and from that amount you received $14,000. You have what your counsel describes as a long-standing heroin addiction, …. Not surprisingly, none of the money has been recovered.
On 11 February 1992 you were placed on probation in the District Court for 2 years and ordered to do 200 hours’ community service work. It was during that term of probation that you committed this offence. …
…
You are aged 30 and have three children dependent upon you. You have a bad record for drug-related matters but no record of any consequence for violence. However, unless you control your drug abuse, there is little doubt that you will continue to offend. …
…” (G14, pp 105-108)
14. In sentencing the applicant to a total term of 4 years and 8 months’ imprisonment for 2 offences of aggravated burglary on 9 August 2005, Mazza DCJ said:
“… You have pleaded guilty before me today to two counts of aggravated burglary. The first in time occurred on 11 January 2005 on Bunnings in Maddington and the second occurred three months later on 11 April 2005 at Coles Express Kardinya. The second offence occurred while you were on bail for the first.
… On 11 January 2005 you and another entered Bunnings Maddington by cutting a metal grille between the roof overhang and the rear wall. You then went to the front of the store and forced the front doors of the change master machine. Those doors opened and you and your co-offender who has not been charged, took $26,000 and it seems to me that was basically in notes and in change.
So far as those moneys are concerned, $10,824 was recovered the following day by police but leaves a substantial amount of money outstanding, roughly $15,000. As to the second offence, you and another broke into Coles Express Kardinya with the purpose of stealing the contents of the safe. In a planned and professional way you disabled the alarm, or at least you thought you had disabled the alarm, and you entered the shop.
You emptied $500 from an auto bank and you then forced the main safe off its mountings. You and your co-accused began wheeling the safe out of the door that you came in but the police arrived and you ran away. You and your co-accused however returned to the premises, not to give yourself up but to see if you could get the safe and take it off the premises, so it has to be said that it was fairly persistent and brazen behaviour on your part.
As to that, the police ultimately came back; the safe wasn’t taken away so the safe and its contents of $27,160 were recovered by police but the $500 you took from the auto bank was not recovered. I am told and I accept that with respect to both offences, you indicated your guilt to police. You haven’t pleaded guilty to these offences until now because you were charged with other offences, but the State has discontinued the prosecution with respect to those other offences.
So it is that I accept that these pleas are being entered at the first proper opportunity and you will be given full mitigating weight for that. However, I need to point out that with respect to the second burglary on the Coles Express Kardinya, you were, in essence, caught red-handed. You really had no choice other than to plead guilty. Both offences are serious. Any burglary on business premises is serious.
These offences are especially serious because they were planned and they were professionally executed. They weren’t spur of the moment offences. Substantial amounts of money was taken and in the case of the second offence, substantial amount of damage was done to the complainant’s premises. They are aggravated because you were in company with someone else and as I have already pointed out, with respect to the second burglary on Coles Express Kardinya, that is further aggravated by the fact that you were on bail at the time.
…
You have a work history, first as a roof carpenter and more lately as a ceramic tiler. So you have a motive to work when you can and it seems that you will work when you have the opportunity. Your nemesis, as it is for so many others who come before this court, is illicit drugs. You first started using cannabis when you were young and you graduated quickly to using heroin because of your contact with a neighbour who apparently was a heroin dealer, and for it seems the better part of 20 years, apart from times when you have been in custody, you have been using heroin.
Inevitably, because of the cost of that drug, you have resorted to offending in order to obtain that heroin and your record does you no credit at all and can give you no mitigation. You have got prior serious convictions for manufacturing illicit drugs, possession of drugs. You have got a conviction for armed robbery and more recently, for stealing. As I have said, your record doesn’t give you any mitigation.
… These offences, I am told, are drug related in the sense that you had been in gaol in the early part of this decade. You were released from prison but you went into immigration detention for 13 months and during all that time you were drug free and you though (sic) you would remain drug free. Unfortunately you came into contact with people who used drugs. You began to use drugs.
Initially the money that you obtained from your wages was enough to cover your drug purchases but soon it got to a point where that wasn’t enough and so you acted in this dishonest way that is before me. Really I think the only mitigating circumstances here are your pleas of guilty and the fact that you admitted your guilt to the police. Beyond that I don’t see that there’s really any other mitigation.
…” (G10, pp 77-78)
15. There can be no dispute that the applicant’s extensive record of criminal convictions over a long period of time – a record which, he acknowledged in cross-examination, did not include other criminal conduct engaged in by him in respect of which he had not been charged or convicted (details of which he refused to give) – is a most serious matter and that, in particular, the convictions specified in paragraph 3 above can only be regarded as very serious.
16. The Tribunal accepts that all of the applicant’s very serious offences were committed as a result of his addiction to heroin. The Tribunal notes, furthermore, the following paragraphs in the applicant’s statement of evidence in mitigation of the abovementioned aggravated burglary offences committed by him in early 2005:
“5.At this time of my release, …[ March 2003], I had been clean from heroin or any other drugs for about 2 years and I stayed clean. I had a Naltraxone implant. However later that year my father was dying of cancer. I was with him every day during the last few weeks before he died. I wasn’t using heroin whilst he was alive, but shortly after he died, I felt depressed and angry and I went back to the old people I knew who could supply me with the drug. I took the heroin to try to relieve the pain that I felt at the loss of my father and I initially believed that it would only be a temporary thing, but in a very short time, I was heavily addicted.
6.Once I became addicted, I blew all my savings. I continued working in our tiling business …
7.I wasn’t making enough money to feed my addiction and I again turned to stealing to feed my addiction. …” (Exhibit A1)
The Tribunal is prepared to accept that evidence as a mitigating factor regarding his commission of the relevant aggravated burglary offences, although not without some reservations given that, as he acknowledged in cross-examination, no reference was made to his father’s death by way of mitigation on his behalf immediately prior to his sentencing by Mazza DCJ in August 2005 (see paragraph 14 above).
17. Having regard to the evidence regarding the applicant’s criminal conduct and, notwithstanding the abovementioned evidence regarding his heroin addiction presented by him by way of an explanation of that conduct, the Tribunal regards that conduct as very serious.
The likelihood that the conduct may be repeated (including any risk of recidivism)
18. Paragraph 2.10 of the Direction states:
“It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. …
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”
19. The applicant’s recorded criminal history in Australia commenced in 1977, when he was a juvenile, and, following various convictions in the period 1983-1986 of offences relating to cannabis use, traffic infringements, resisting arrest, hindering police, breaking entering and stealing, and receiving, in respect of which relatively small fines were imposed, he was convicted of his first very serious offences, namely, supplying heroin and possessing a quantity of heroin with intent to sell or supply, and received his first custodial sentence, namely, 3 years’ imprisonment, in November 1987. His criminal record thereafter comprises numerous convictions on 17 separate occasions in the years 1992, 1994, 1997, 1998, 1999, 2000, 2004 and 2005, including, of course, the other very serious convictions referred to in paragraph 3 above. It seems fair to say that the only significant gaps in the applicant’s recorded criminal history from 1992 to date have coincided, for the most part, with periods when he was in detention.
20. The Tribunal notes that:
· in February 1996 the applicant was formally warned by the (former) Department of Immigration and Ethnic Affairs that he was liable to deportation pursuant to s 200 of the Act by reason of his abovementioned convictions of heroin offences in November 1987 and his conviction of the armed robbery offence in March 1994 and that any further conviction would lead to the question of his deportation being reconsidered (G3);
· on 24 January 2002 the (former) Minister for Immigration and Multicultural and Indigenous Affairs cancelled the applicant’s visa under s 501(2) of the Act following his abovementioned convictions of stealing a motor vehicle, and of stealing, in July 2000 (G5), but that decision was ultimately quashed by the Full Court of the Federal Court of Australia on 8 September 2003: see Long v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 610.
The Tribunal also notes that:
· the applicant committed the offence of armed robbery in company on 12 August 1992 at a time when he was on probation for 2 years following his conviction of manufacturing heroin on 11 February 1992 (see Scott J’s sentencing remarks set out in paragraph 13 above);
· the applicant committed the offence of aggravated burglary on 11 April 2005 (being the most recent offence of which he has been convicted) at a time when he was on bail for an offence of aggravated burglary which he committed on 11 January 2005 (see Mazza DCJ’s sentencing remarks set out in paragraph 14 above).
21. Notwithstanding that the applicant’s long recorded criminal history might itself be reasonably regarded as indicative of a likelihood of his reoffending and of a high risk of recidivism in his case, the Tribunal, having regard to the nature of that history, accepts the submission made on behalf of the applicant that the likelihood of his reoffending and the risk of recidivism in his case are directly related to the likelihood or risk of his using, and becoming addicted to, illicit drugs (including, in particular, heroin) in the future.
22. The applicant, in his evidence, reiterated that he has been completely drug-free since April 2005 and has finally reached a stage in his life where he has no desire to take, and indeed no interest in taking, drugs, and that he will remain drug-free in the future. In his statement of evidence he stated:
“8.I went straight into custody following the burglary on the service station in April 2005. I went cold turkey and got myself off heroin within 2 weeks. The first week was pretty tough, but once I had got over the physical craving, I did not want to take heroin at all. I was very ashamed of my life and of the harm that I did to others in committing crimes against them and also the harm and disruption that I caused to my family, particularly to my children. Looking back, my behaviour was insane and totally wrong, but I was driven by my need for heroin. I realise this is no excuse and I intend never to offend again.
9.I served my prison sentence initially in Hakea Prison and then in Casuarina and then in Karnet for the last 16 months of the sentence. I completed the prison sentence in December 2007 and I was then taken into Immigration Detention. I was regularly tested for drugs whilst in prison, which is part of the regime, particularly in minimum security prison such as Karnet and because of my record. I was clean throughout my prison sentence as my prison reports show. There are always opportunities to get drugs in prison, but I had no desire to take drugs again.
10.I attended a 3 months Dependencies Program completed on 25 January 2007. The main purpose of the course was to reinforce the reasons not to take drugs, the effects of drugs on the user and his family and the help available outside prison. This course was taken whilst I was at Karnet Prison. Later in 2007 I also saw a drug counsellor, Tom Darby, about once a fortnight for about 4 months. He was very helpful, both in reinforcing the drug avoidance techniques, although I had already made up my mind by the time I went to Karnet that I would not take drugs again, but for me Tom Darby’s main help to me was in assisting me to cope with traumas relating to my son Brian’s motor vehicle accident in July 2007. Brian suffered a fractured neck and lower back and initially Ann and I were advised that he might not walk again. Two people were killed in the accident and I understand that it was Brian’s fault and he has been charged with DUI and other offences arising out of the accident. Brian had made a pretty good and surprising quick recovery from his injuries and he has (sic) back working in our own tiling business. However he is likely to be facing a lengthy prison sentence. He is due to be sentenced on 28 March 2008.
11.Since I have been in Immigration Detention, I have been attending a group session at Holyoake, which is a counselling service for drug and alcohol addicts. I attend these sessions twice a week. … I find these sessions very rewarding. They are also hard work, but they open my eyes to new ideas and ways of coping with situations as they arise. I am seeing people in the same stage of their lives where I was 10 or 20 years ago. It makes me reflect and I realize that there has to be a time in my life where I have to stop taking drugs and I know that I am at that stage at last. I also believe that in the course of these sessions, I am able to help the younger blokes, give them advice and guidance about how drug taking stuffs up your life and to speak to them from personal experience, which the drug counsellors do not necessarily have.” (Exhibit A1).
23. In his oral evidence the applicant emphasised, by way of confirmation that his drug-taking days are over, that his last period of prison incarceration from April 2005 to December 2007, is the first in which he has remained drug-free, and, furthermore, that he was able to remain drug-free despite the stresses of gaol, the break-up of his marriage, and his son’s motor vehicle accident in which his son was seriously injured and 2 people were killed and as a result of which criminal charges were laid against his son. He added that, if there was ever a period of incarceration in which he would have been inclined to take drugs, that was it – yet he did not.
24. The applicant’s evidence regarding his remaining drug-free since April 2005 was supported by his wife, Ann Long, and by his mother, Catherine Long – the latter stating that, whereas in previous periods of incarceration the applicant would always ask her for money when she visited him, during his last period of incarceration he did not, causing her to believe that he was no long using drugs, and that, furthermore, he swore on his father’s grave that he would never take drugs again. The Tribunal notes, in this connection, that the various Department of Corrective Services prison reports which are in evidence indicate that the applicant did not incur any prison charges or convictions, or suffer any loss of privileges, during his last period of incarceration, and describe his prison performance generally in favourable terms (G11, Exhibit R2).
25. The Tribunal also notes, however, that there is no evidence before it from any relevantly qualified person, such as, for example, a prison psychologist or a counsellor who has had contact with the applicant in the period from April 2005 to date, who may have been in a position to express an opinion regarding the degree of the risk of the applicant’s using illicit drugs in the future or of his reoffending.
26. Another factor which, in the Tribunal’s opinion, is relevant to an assessment of the likelihood or risk of the applicant’s committing serious offences in the future is the extent to which he is genuinely contrite and remorseful in respect of such offences he has committed in the past. When asked, in the course of his examination-in-chief, how he felt about the victims of his offences, he referred immediately to the fact that, shortly before he went to prison in 2005, his Landcruiser motor vehicle, which was not insured, was stolen and he said that he felt angry and that he “condemned” the thieves. He added that he did not steal from “battlers”, but only from large companies. When he was subsequently asked, in cross-examination, specifically how he felt about the victims of his armed robbery offence in 1992, having regard to their victim impact statements, he responded that he has never done an armed robbery since then and that, at the time, he pictured his mother in the position of the female victim and he felt sorry for her and remorseful. The Tribunal notes that neither of the sentencing Judges, whose sentencing remarks are set out in paragraphs 13 and 14 above, referred in his remarks to the applicant’s expressing any remorse or contrition for having committed the relevant offences. Having observed the applicant give evidence, and having considered, in particular, his abovementioned evidence regarding his feelings concerning the victims of his armed robbery and aggravated burglary offences, the Tribunal is not satisfied that the applicant genuinely feels contrition and remorse for having committed those offences.
27. The Tribunal notes the applicant’s evidence regarding his completion of the “Moving on from Dependencies Program” in Karnet Prison in November 2006/January 2007 and the counselling sessions he subsequently attended in prison and later in the Immigration Detention Centre. There is, however, no objective professional evidence before the Tribunal regarding the nature and quality of the applicant’s participation in those activities and the likelihood, or unlikelihood, of his deriving substantial and lasting rehabilitative benefit therefrom.
28. The Tribunal also notes the applicant’s evidence that he has finally reached a stage in his life where he neither desires to use heroin nor has any interest in using heroin, and, indeed, where he has a positive desire not to use heroin or to be associated in any way with heroin or heroin users. The Tribunal also notes that that evidence is supported by some objective evidence, namely, the “Moving on from Dependencies Program” Completion Certificate dated 25 January 2007, and the abovementioned prison reports regarding his incarceration from April 2005 to December 2007 which are consistent with the proposition that he was drug-free for the whole of that period. Given the applicant’s history of heroin addiction from the mid 1980s to April 2005 (including relapses from time to time), however, and in the absence of objective professional evidence in support of the proposition that the applicant is unlikely to relapse into heroin use or addiction in the future, the evidence presented by the applicant in this case is not sufficient to satisfy the Tribunal that there is little or no risk of the applicant’s relapsing into heroin use and addiction in the future. On the contrary, the Tribunal is satisfied, on the whole of the evidence before it, that the risk of his doing so is high.
29. Having regard to the whole of the evidence before it – including, in particular, the evidence regarding the applicant’s having become addicted to heroin by the mid 1980s and thereafter, despite his professed intention to become drug-free and the making of some efforts to rid himself of his heroin addiction, consistently relapsing into heroin use and subsequent addiction (most recently in late 2003 following his father’s death) and committing serious offences in order to obtain funds to finance his heroin addiction (most recently in January and April 2005) – the Tribunal is satisfied that it is highly likely that the applicant will again relapse into heroin use and addiction in the future and, having regard to his apparent lack of contrition and remorse for having committed the abovementioned serious offences, will also similarly reoffend for the purpose of financing such addiction.
30. The Tribunal is, accordingly, satisfied that the likelihood of the applicant’s again relapsing into heroin use and addiction and of his again committing very serious offences is high, and that there is a high risk of recidivism in his case.
General deterrence – the likelihood that visa cancellation would prevent (or inhibit the commission of) like offences by other persons
31. According to para 2.11 of the Direction, “general deterrence is an important factor in determining whether to … cancel a visa”. The Tribunal is prepared to infer that the cancellation of the applicant’s visa would add to the general deterrent effect of the abovementioned custodial sentences which have been imposed upon him for the relevant offences. Furthermore, the Tribunal is of the opinion that visa cancellation in this case would reinforce the public message conveyed by those sentences, namely, that the kinds of serious offences perpetrated by the applicant are regarded as unacceptable by the community, by adding to those sentences the sanction of removal from Australia, and that, in that respect, it may have an additional deterrent effect as regards non-citizens. However, given the uncertainty of the extent, if any, of general deterrence in this case, the Tribunal does not regard it as appropriate to attach significant weight to this factor.
Overall assessment of the first primary consideration
32. Having regard to all the circumstances of the applicant’s case and, in particular, to the three relevant factors discussed above, the assessment of the Tribunal is that, because of the very serious offences of which the applicant has been convicted, and because in the Tribunal’s opinion there is a high risk of the applicant’s relapsing into heroin use and addiction and committing serious offences in the future, the first primary consideration, namely, the protection of the Australian community, militates strongly in favour of cancellation of the applicant’s visa.
The second primary consideration – the expectations of the Australian community
33. Paragraph 2.12 of the Direction relevantly states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to … cancel the visa held by such a person. Visa … cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person … should be removed from Australia …”
It is axiomatic that the Australian community expects non-citizens to obey Australian laws while in Australia. A far more problematic matter is the expectation of the Australian community as regards the cancellation or non-cancellation of a non-citizen’s visa. In making an assessment of the likely expectation of the Australian community regarding the cancellation or non-cancellation of the applicant’s visa, it is appropriate, in the Tribunal’s opinion, to approach that task from the standpoint of the hypothetical, reasonable and fair-minded member of the community, with imputed knowledge of all relevant circumstances of the applicant’s case. Such knowledge will include not only knowledge of the circumstances of the applicant’s very serious offences of which he was convicted in 1987, 1992, 1994, 2000 and 2005 (see paragraph 3 above), and his entire criminal history, but also knowledge of his other relevant circumstances, including his personal and family circumstances. Accordingly, the Tribunal will postpone further consideration of this matter until after it has considered all of the applicant’s relevant circumstances.
The third primary consideration – the best interests of the child or children
34. According to subpara 2.3(c) of the Direction, in all cases involving a “parental or other close relationship” between a child or children and the non-citizen under consideration, the best interests of the child or children is a primary consideration. Paragraph 2.13 confines the application of this primary consideration to a child or children who would be under 18 years of age at the time when the relevant decision is intended to come into effect. Paragraph 2.15 states that, in general terms, the child’s best interests will be served if the child remains with its parents, although there may be countervailing considerations which may point to the child’s best interests being served by separation from the relevant non-citizen. Finally, para 2.16 sets out factors to which regard should be had in considering the best interests of the child, including the nature of the relationship between the child and the non-citizen, the duration of the relationship, the age of the child, and the likely effect that separation from the non-citizen would have on the child.
35. The applicant has 4 children, 2 of whom are under the age of 18 years, namely, Chelsea, who was born in July 1990, and Elyce, who was born in April 2000. In his statement of evidence the applicant referred to his relationship with his children, especially Chelsea and Elyce, as follows:
“18.I believe it has been very important for all our children to have a mother and a father present to care for them and to guide them. As the children grow up and become adults that obviously becomes gradually less important. I believe for my children’s sake and particularly for the 2 youngest Chelsea and Elyce, it is very important in their lives that I am in Australia. Obviously I have not been the father that I could have been with significant periods in prison, but we have nevertheless always remained in close contact and all the children have visited me and we have been able to have direct contact as well as telephone contact. When I have not been in prison, I have always spent a lot of time with the children and they would come out with me and bring their friends, to all go crabbing together as just one example. I believe that I am very important in Elyce’s life and that all kids need a father. Except when I have been in prison, I have always been the breadwinner for the family and I expect that to continue once I am released if I am allowed to stay in Australia. It will be much more difficult to get a job in the UK and to provide support from there, particularly with my record and in a country where I have not lived since I was a child and where I have no contacts and no prospects.” (Exhibit A1)
36. Ann Long, the wife of the applicant and the mother of his children, wrote a letter to the Department of Immigration and Citizenship (“the Department”), dated 24 July 2007, in support of the applicant’s being allowed to stay in Australia, in which she stated (inter alia):
“…I think every child needs their father around them when they are growing up, especially our youngest daughter Elyce who is seven years old and has already been without her father for the few years he has spent in prison. It has already started to affect her not having him around to be involved when she first started school and other things she likes to do like dancing and gymnastics also when we do family stuff it’s not the same not having him around and getting involved with his family…” (G20, pp138-139)
In her oral evidence-in-chief Ann Long reiterated her belief that Chelsea and Elyce need their father in their lives. In cross-examination she confirmed that she and the applicant separated a few years ago because she “didn’t want that life anymore” and “didn’t want it for Elyce”, but she added that she now truly believes that the applicant has managed to get himself “clean” from drugs and that he will stay “clean” and not relapse and reoffend. She acknowledged that she had used heroin up until 2005 but she said that she then ceased using heroin and that she will not relapse. She also acknowledged that, because of the applicant’s offending and incarcerations, he has had very little contact with Elyce to date, but that, for that reason, Elyce now “needs him that much more”. Finally, she said that, if the applicant is allowed to remain in Australia, he will not be living with her and her daughters.
37. Chelsea Long, the applicant’s daughter (aged 17 years), wrote a letter to the Department, dated 24 July 2007, in support of the applicant’s being allowed to stay in Australia, in which she stated (inter alia):
“… He is not only my dad but my best friend and a counsellor, for not only myself but friends and family he offers impartial, compassionate, and yet sensible advice, also helping people, family and friends comes naturally to one with his accommodating nature, I’m at an age when I need my mum and my dad in my life, there’s been so much time taken away that we could have soon together to share with and make memories, and it won’t be long till I’ll be getting married, and need my dad there to walk me down the aisle. I’ve got a boyfriend, and I’m currently studying nursing with the elderly, I attend TAFE once a week and do up to eleven shifts a fortnight at a nearby nursing home (Bethanie (sic) Waters). I enjoy my work, one day in my life I’m also going to be wanting children, I think my dad would love to have grandchildren, and to see them grow up. If my dad was to be deported well that would ruin that chance and lots more, my father has always tried so hard he puts everyone first, even when all us kids were growing up we would have the best things, the best clothes, he always worked hard to acquire a luxurious lifestyle and can out-perform and out-produce most others when positively motivated, he is eternal optimists and idealist, can take almost any negative situation and turn into something positive for everyone (sic).
My father is a great man, and it’s a huge impact on my 7 year old sister especially, and also my two older brothers, and myself. My younger sister loves my dad so much and it’s upsetting when we’re out doing family stuff and she asks/says why isn’t dad here to see this, I wish he was here to watch me do the splits etc. She absolutely loves dancing and gymnastics and she would love to have her daddy around for when she performing (sic) at her best…” (G20, pp141-142)
In her oral evidence-in-chief Chelsea Long reiterated that she and her younger sister, Elyce, need their father in their lives. In cross-examination she said that she is not living with her mother and that she is living with her boyfriend. She said that she first became aware of her father’s use of drugs when she was 16 years of age and that she believes and knows that he has now changed.
38. The Tribunal accepts that, notwithstanding the substantial periods of time during which the applicant was incarcerated since 1990 (when Chelsea was born) and, especially since 2000 (when Elyce was born), the applicant has had, and continues to have, a very close and loving relationship with Chelsea and Elyce, and that he has, since their births, constantly provided care, guidance, and emotional and financial support to them, and that he will continue to do so if given the opportunity. The Tribunal also accepts that Chelsea and Elyce want and need the applicant to continue to be an integral part of their lives as they grow up and that they would feel great disappointment and sadness, and suffer substantial emotional distress, if the applicant were physically separated from them by reason of his removal from Australia as a result of the cancellation of his visa. The Tribunal accepts, furthermore, that, if the applicant were to be removed from Australia to the United Kingdom, that physical separation would continue indefinitely, if not necessarily permanently, because neither Chelsea nor Elyce will be in a position to accompany the applicant to live in the United Kingdom or even to visit him there in the foreseeable future.
39. Having regard to the abovementioned considerations, the Tribunal is of the opinion that, notwithstanding the applicant’s history of heroin abuse and offending and (as previously found) the likelihood of his relapsing into heroin abuse and offending in the future, it would be in the best interests of Chelsea and Elyce for the applicant to remain in Australia and maintain the very close parental relationship which he presently has with them In short, the Tribunal is satisfied that it is in the best interests of Chelsea and Elyce that the applicant’s visa not be cancelled, and that this primary consideration, accordingly, militates against cancellation of the applicant’s visa.
Other considerations
40. Relevant considerations, other than the primary considerations, must of course be taken into account but, according to para 2.17 of the Direction, it is appropriate that they generally be given less individual weight than that given to the primary considerations. Paragraph 2.17 contains a non-exhaustive list of such other considerations which may be relevant to the circumstances of particular cases. The Tribunal will now refer to those considerations relied on by the applicant, and to other considerations, which it regards as relevant in his case.
41. The Tribunal accepts that a major disruption would be caused to the applicant’s immediate family unit – comprising himself, Ann Long, and their 4 children, Brian (aged 25 years), Daniel (aged 19 years), Chelsea (aged 17 years) and Elyce (aged 7 years) – if he were removed from Australia because they would not be in a position to accompany him to live in the United Kingdom. The Tribunal has had regard to the letters written by Ann Long and Daniel Long, which are in evidence (G20, pp135-140), and the oral evidence of Ann Long, and it accepts that they would suffer great emotional distress and hardship if the applicant were removed from Australia. Although there is no letter or other material from the applicant’ son, Brian, in evidence, the Tribunal accepts the evidence of the applicant and of Ann Long to the effect that Brian especially needs the applicant’s continued supportive presence in Australia at the present time when he is apparently facing the prospect of a substantial custodial sentence by reason of his involvement in a very serious motor vehicle accident in July 2007 in which 2 people were killed.
42. The Tribunal has had regard to the letter written by Catherine Long, the applicant’s mother (G20, pp143-144), and to her oral evidence, and it accepts that she would suffer great emotional distress and hardship if the applicant, her only son, were removed from Australia. The Tribunal notes, furthermore, that the applicant’s siblings, namely, Cathy Long, Deborah Clark and Maria Anderson, all reside in Western Australia, and it has had regard to letters written by them (G20, pp145-149) expressing the feelings of devastation which they and their children would experience if the applicant were removed from Australia. The Tribunal has also had regard to supportive letters written by a nephew of the applicant and 2 longstanding friends of the applicant (G20, pp150-155).
43. As regards the applicant himself, the Tribunal accepts that his removal from Australia would cause him great emotional distress and hardship by reason of his being physically separated from his children, his wife, his mother, and his sisters and their families, in Australia where he has lived continuously since 1981 when he was 17 years of age and which he regards as home. In this connection the Tribunal notes that the applicant has no close relatives or friends in the United Kingdom (the relevant receiving country in the event of his removal from Australia), and it accepts that his prospects of rehabilitation would be lower in the United Kingdom than in Australia where he has a strongly supportive family network. It may be that his employment prospects and general quality of life would also be less favourable in the United Kingdom than in Australia. In short, the Tribunal accepts that the applicant’s removal from Australia would be very disadvantageous to him.
44. On the other hand, the applicant’s present position, wherein he is liable to have his visa cancelled under s501(2) of the Act, was brought about by his own criminal conduct and despite the fact that he received a formal departmental warning in February 1996 about the possible consequence of deportation under the Act in the event of future criminal convictions and, indeed, despite the fact that his visa was cancelled in January 2002 under s501(2) of the Act on the ground that he had been convicted of further criminal offences (see paragraph 20 above). Those circumstances, in the Tribunal’s opinion, detract substantially from the weight which might otherwise have been given to the matter of the hardship to the applicant which would result from the cancellation of his visa.
45. Finally, as previously mentioned, the Tribunal notes the applicant’s reported good conduct during the period of his most recent incarceration from April 2005, his remaining drug-free during that period, and his completion of the “Moving on from Dependences Program” and subsequent ongoing attendance at counselling sessions, but, on the other hand, it also notes the absence of any objective professional evidence regarding the quality of his participation in those activities and the likelihood, or unlikelihood, of his deriving substantial and lasting rehabilitative benefit therefrom. In those circumstances, the Tribunal is not presently satisfied that the applicant has been rehabilitated or, indeed, has made any substantial progress towards his rehabilitation.
46. Having regard to the abovementioned relevant considerations – other than the primary considerations – in this case, the assessment of the Tribunal is that they, on balance, militate against cancellation of the applicant’s visa.
The expectations of the Australian community
47. In the Tribunal’s opinion, although reasonable, fair-minded and relevantly informed members of the Australian community would regard the abovementioned offences of which the applicant was convicted in 1987, 1992, 1994, 2000 and 2005 (see paragraph 3 above) as very serious and unacceptable, they would not regard those offences as so abhorrent and repugnant as necessarily to require the applicant’s removal from Australia. Such members of the Australian community would, in the Tribunal’s opinion, expect that, having regard to the applicant’s abovementioned personal and family circumstances, including:
· he has remained drug-free since the commencement of his most recent incarceration in April 2005, despite some very stressful experiences including separation from his wife and his eldest son’s very serious motor vehicle accident;
· he has 4 children (including 2 children under the age of 18 years) in Australia and he has a close, loving and caring relationship with each of those children;
· his wife (the mother of his children), his mother, and his 3 siblings reside in Australia, and his deceased father is buried in Australia;
· in the event of his removal from Australia, his wife and children would not be in a position to accompany him to live in the United Kingdom (the receiving country), and he has no relatives or friends in the United Kingdom;
· he has lived in Australia continuously since 1981 when he was 17 years of age and he regards Australia as his home;
his visa should not be cancelled and he should not be removed from Australia unless there were cogent reasons for doing so.
48. In the Tribunal’s opinion, however, reasonable, fair-minded and relevantly informed members of the Australian community would regard the applicant’s long history of heroin abuse and addiction, commencing in the mid 1980s and resulting in his committing several very serious offences of which he was convicted in 1987, 1992, 1994, 2000 and 2005, very unfavourably and as involving repeated very serious breaches of trust by a non-citizen and as constituting cogent reasons for cancelling his visa and removing him from Australia in order to protect the community from the risk of his again committing such offences in the future. Such members of the Australian community would, in the Tribunal’s opinion, regard visa cancellation as particularly appropriate and warranted in this case having regard to the fact that the applicant was formally warned in February 1996 about the possibility of his being deported in the event of future criminal convictions, and that in January 2002 his visa was in fact cancelled on the ground that he had been convicted of further criminal offences, and yet, following each of those official actions, he went on to engage in further very serious criminal conduct.
49. In the Tribunal’s opinion, therefore, reasonable, fair-minded members of the Australian community would, having regard to all the relevant circumstances of the applicant’s case (including his abovementioned personal and family circumstances), expect that his visa be cancelled and that he be removed from Australia. Accordingly, this primary consideration militates in favour of cancellation of the applicant’s visa.
Overall assessment of the primary considerations and other relevant considerations
50. Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to the Direction, whether those considerations, on balance, favour cancellation, or non-cancellation, of the applicant’s visa. In the Tribunal’s opinion it is appropriate, primarily because of the perceived likelihood of the applicant’s relapsing into heroin addiction and committing serious offences in the future, that the greatest weight be attached to the first primary consideration – the protection of the Australian community – in this case. Each of the other primary considerations – the expectations of the Australian community, and the best interests of the children – is, in the Tribunal’s opinion, deserving of great weight but less weight than that attached to the first primary consideration. Accordingly, the collective weight attached to the first and second primary considerations (each of which militates in favour of cancellation of the applicant’s visa) is, in the Tribunal’s assessment, substantially greater than the weight attached to the third primary consideration (which militates against cancellation of the applicant’s visa). Although the other relevant considerations in this case, on balance, militate against cancellation of the applicant’s visa, they are, in the Tribunal’s opinion, collectively deserving of less weight than that attached to any of the primary considerations. In the assessment of the Tribunal, therefore, those considerations which favour cancellation of the applicant’s visa collectively outweigh those considerations which favour non-cancellation of his visa.
Conclusion
51. The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and other relevant considerations in this case, those considerations, on balance, favour cancellation of the applicant’s visa, and that, accordingly, the preferable decision in this case is that the applicant’s visa be cancelled.
Decision
52. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...........................[C Skinner]...............................
AssociateDate of Hearing 27 March 2008
Date of Decision 9 April 2008
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Henry Christie
Counsel for the Respondent Ms I McCormick
Solicitor for the Respondent Australian Government Solicitor
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