Lyons and Minister for Immigration and Multicultural Affairs
[2000] AATA 1015
•20 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1015
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/334
GENERAL ADMINISTRATIVE DIVISION )
Re RICHARD GORDON LYONS
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Associate Professor SD Hotop, Deputy President
Date20 November 2000
PlacePerth
Decision The decision under review is affirmed.
...........(sgd S D Hotop)............
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of permanent residence visa – applicant migrated to Australia from United Kingdom in 1968 when aged 10 years – applicant committed numerous criminal offences from 1972 to 1999 – applicant convicted of 3 offences, including armed robbery in company, in 1999 and sentenced to a total of 9 years imprisonment – applicant has a substantial criminal record – applicant does not pass the character test – whether discretion to cancel applicant's visa should be exercised – primary considerations – the protection of the Australian community (including the seriousness and nature of the conduct, the likelihood of the conduct being repeated, and general deterrence) – the expectations of the Australian community – the best interests of the child – other relevant considerations
Migration Act 1958 ss 501(2), 501(6), 501(7)
Direction – Visa Refusal and Cancellation under section 501 – No 17
REASONS FOR DECISION
20 November 2000 Associate Professor SD Hotop, Deputy President
This is an application by Richard Gordon Lyons ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent"), dated 28 August 2000, to cancel his Permanent Residence Visa pursuant to s501(2) of the Migration Act 1958 ("the Act").
At the hearing the applicant was represented by his sister, Ms P Pettiford, and the respondent was represented by Ms R Vavakis of the Australian Government Solicitor's office. Oral evidence was given by the applicant and, on his behalf, by Ms Pettiford and by his mother, Mrs D Lyons. The Tribunal had before it a copy of the documents ("G documents") provided to the applicant by the respondent pursuant to s501G(2) of the Act, supplementary G documents (comprising "Direction – Visa Refusal and Cancellation under section 501 – No 17" given by the respondent under s499(1) of the Act, dated 16 June 1999 ("the Direction")) lodged by the respondent on 5 October 2000 and the following documentary exhibits tendered by the parties:
letter from the applicant to the Tribunal, dated 22 October 2000 (A1);
letter from Pauline Pettiford to the Tribunal, dated 22 October 2000 (A2);
letter from D B Lyons, undated (A3);
letter from Leonie Ibrahim, Programmes Officer, Substance Use Resource Unit, Prison Services, Ministry of Justice to Ms P Pettiford, dated 4 October 2000 (A4);
letter from R Ross, Assistant Programme Coordinator, Sex and Violent Offender Treatment Unit, Prison Services, Ministry of Justice to the applicant, dated 9 September 2000 (A5);
report of Dr R M Hanney, General Surgeon, dated 16 October 2000 (A6);
report of Dr A B Hamish Crawford, Consultant Respiratory Physician, dated 18 October 2000 (A7);
letter from Antony R Lyons, dated 19 October 2000 (A8);
letter from Wayne Pettiford to the Tribunal, dated 22 October 2000 (A9);
letter from Raine March, undated (A10);
transcript of proceedings in the District Court of Western Australia (Judge Groves) in the matter of The Queen and Richard Gordon Lyons and Benjamin Ashley Peters on 3 December 1999 (comprising 10 pages) (R1);
Victim Impact Statement of David Dunwoodie to the Presiding Judge, Supreme Court of Western Australia in the matter of The Queen and Richard Gordon Lyons, dated 12 March 1999 (R2);
Assessment Notification by L Ibrahim, Substance Use Resource Unit, Prison Services, Ministry of Justice, dated 26 May 2000 (R3);
Programme Completion Report by John Bourchier, Manager, Substance Use Resource Unit, dated 12 June 1995 (R4);
Ministry of Justice Offender in Custody File relating to the applicant (R5).
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the G documents and about which there is no dispute between the parties, are as follows.
The applicant was born on 5 February 1958 in London, United Kingdom.
The applicant first arrived in Australia on 26 July 1968, aged 10 years and 5 months, with his parents and siblings and he has remained in Australia since that date.
The applicant has a criminal history in New South Wales, Victoria, Queensland and Western Australia.
The applicant's criminal history in New South Wales is as follows:
Date of Conviction Nature of Offence Sentence
26.07.72 Break enter and steal Committed to an institution
08.08.72 Break enter and steal Stealing (lighter, cigarettes, money) Committed to an institution
30.01.74 Stealing (cheques and money) Stealing (cheques and money) – 3 charges Committed to an institution, good behaviour bond of $300.00, to be under supervision of Child Welfare Department On each charge $20.00 or 4 days detention
11.06.74 Unlicensed driver Illegal use of motor vehicle 2 years probation, accept supervision from Department of Youth and Community Services, remain in employment 2 years probation, accept supervision from Department of Youth and Community Services, remain in employment
20.07.74 Stealing motor cycle Committed to an institution
27.02.75 Goods in custody (replaced with stealing motor vehicle) Stealing motor vehicle Committed to an institution Committed to an institution
31.08.81 Stealing (video cassette recorder) Fined $500.00 or 20 days hard labour, sentence deferred on 2 year good behaviour bond of $500.00, compensation of $250.00 or 10 days hard labour
25.02.82 Stealing (television set) Fined $500.00 or 20 days hard labour, sentence deferred on 2 year good behaviour bond of $500.00, appear if called, compensation of $500.00 or 20 days hard labour
30.03.82 Stealing (electrical equipment) Sentence deferred on 3 year good behaviour bond of $500.00, probation and parole supervision
12.06.85 Breach of recognizance Take motor vehicle Two months hard labour Two months hard labour
03.09.85 Forge document Fined $500.00 or 20 days hard labour
26.05.85 Stealing One month hard labour
27.06.86 Administer drug of addiction Six months hard labour
28.08.86 Possess amphetamine Possess Cannabis Three months hard labour One month hard labour
14.02.87 Forgery Uttering Fined $250.00 or 5 days hard labour Fined $250.00 or 5 days hard labour and pay compensation $157.20.
The applicant's criminal history in Victoria is as follows:
Date of Conviction Nature of Offence Sentence
25.08.83 Theft Theft Fined $500.00 or 14 days hard labour, $200 restitution Fined $500.00 or 14 days hard labour, $800 restitution.
The applicant's criminal history in Queensland is as follows:
Date of Conviction Nature of Offence Sentence
04.11.91 Unlawful use of a motor vehicle Fined $300.00
23.01.92 Obtain credit by fraud Community service 40 hours, restitution $179.00
12.02.92 Unlawful use of a motor vehicle Supply dangerous drug Wilful false promise Wilful false promise Partly by false pretences and partly by wilful false promise Community service 40 hours Community service 40 hours Probation 12 months, restitution $30.00 On each charge probation 12 months, total restitution $277.00
30.04.92 Obtain credit by fraud – 3 charges On each charge convicted and sentenced to imprisonment of 10 days
29.10.92 Breach of community service order imposed on 12 February 1992 Order revoked.
The applicant's criminal history in Western Australia is as follows:
Date of Conviction Nature of Offence Sentence
01.02.84 Stealing Fined $75.00
28.11.84 Unauthorised use of a motor vehicle Fined $200.00
13.07.93 Stealing a motor vehicle Disqualified from holding or obtaining a motor drivers licence for 6 months, fined $500.00
15.12.94 Fraud Stealing Stealing (motor vehicle) 18 months probation Fined $1,000, 18 months probation 18 months probation
31.01.95 Breach of probation (order of 15 December 1994) Stealing Stealing No motor drivers licence 6 months imprisonment cumulative on each charge 3 months imprisonment concurrent 6 months imprisonment concurrent Disqualified from holding or obtaining a motor drivers licence for 3 months, fined $100.00
31.05.99 Kidnapping Stealing a motor vehicle Armed robbery in company 12 months imprisonment 12 months imprisonment 7 years imprisonment.
On 28 August 2000 a delegate of the respondent determined that the applicant did not pass the "character test", as set out in s501(6) of the Act, and decided, pursuant to s501(2) of the Act, to cancel the applicant's Permanent Residence Visa. The applicant was initially notified of that decision by letter dated 29 August 2000 but, as that letter contained an error in relation to the date by which the applicant was entitled to apply to this Tribunal for a review of that decision, it was replaced by a letter dated 31 August 2000 notifying him of that decision and informing him that an application for review must be lodged with the Tribunal on or before 11 September 2000.
On 11 September 2000 the applicant lodged with the Tribunal an application for review of the delegate's decision of 28 August 2000.
The LegislationSection 501 of the Act relevantly provides:
"…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…; or
(c)…; or
(d)… .
Otherwise, the person passes the character test.
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)…; or
(b)…; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)…".
Section 500 of the Act provides for review by the Tribunal of, inter alia, a decision of a delegate of the respondent under s501 of the Act. In reviewing such a decision, the Tribunal is obliged, by s499(2A) of the Act, to comply with the Direction. Part 1 of the Direction deals with the application of the "character test" set out in s501(6) of the Act. Part 2 of the Direction deals with the exercise of the discretionary power to refuse to grant (s501(1)), or to cancel (s501(2)), a visa in the event that the relevant person does not pass the "character test".
The Application of the Act and the Direction to the Circumstances of the Applicant's Case
The Character TestFailure to pass the "character test" is a jurisdictional fact which must exist before the discretionary power to cancel a visa under s501(2) of the Act can arise. The "character test" is set out in s501(6) of the Act which prescribes various alternative circumstances in which a person does not pass the "character test". In the present case, the relevant circumstance is that prescribed by para (a) – namely, that "the person has a substantial criminal record".
The phrase "substantial criminal record" is explained in s501(7) of the Act which prescribes five alternative circumstances in which a person has a "substantial criminal record" for the purposes of the "character test". These circumstances include:
"(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;".
In the present case it is an undisputed fact that on 31 May 1999 the applicant was:
sentenced to 12 months imprisonment upon conviction of the offence of kidnapping;
sentenced to 12 months imprisonment upon conviction of the offence of stealing a motor vehicle;
sentenced to 7 years imprisonment upon conviction of the offence of armed robbery in company.
On the basis of those sentences, either individually or collectively, the applicant has a "substantial criminal record" within the meaning of para (c) or para (d) of s501(7) of the Act and, accordingly, by reason of para (a) of s501(6) of the Act, he does not pass the "character test". The relevant jurisdictional fact which conditions the existence of the discretionary power to cancel the applicant's visa under s501(2) of the Act does, therefore, exist in this case.
The Exercise of the Discretionary Power
The question then arises whether or not the discretionary power to cancel the applicant's visa under s501(2) of the Act should be exercised in this case.
Part 2 of the Direction, which addresses that issue, prescribes various considerations to which relevant decision-makers, including this Tribunal, must have regard in exercising the discretion whether or not to cancel a visa. Part 2 of the Direction also addresses the issue of the appropriate weight to be given to those prescribed 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 2.17-2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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
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 relationship between a child or children and the person under consideration, the best interests of the child or children."
The 1st Primary Consideration – the Protection of the Australian Community
Paragraphs 2.4 and 2.5 of the Direction state:
"2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
The seriousness and nature of the conduct
Paragraph 2.6 of the Direction gives examples of offences which are considered by the Government to be very serious. These include:
"(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f)murder, manslaughter, assault or any other form of violence against persons;
…
(h)kidnapping;
…
(n)any other crimes involving violence or the threat of violence:
· such crimes are of special concern to the welfare and safety of the Australian community;…".
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:
· crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community."
On 31 May 1999 the applicant was convicted of 3 serious offences, namely, kidnapping, stealing a motor vehicle, and armed robbery in company. He was sentenced to 12 months imprisonment in respect of each of the first and second offences, and 7 years imprisonment in respect of the armed robbery offence – a total sentence of 9 years imprisonment. The gravity of those offences – especially the kidnapping and armed robbery offences – is clearly reflected in the comments of Wheeler J (Supreme Court of Western Australia) when sentencing the applicant. Her Honour said:
"… going to the facts of these matters first, at about 2 pm on Monday 4 January the victim of these offences, who was a 72-year-old man, had gone to Kings Park, alone, to read a book. He was sitting in his vehicle in Kings Park when you and your accomplice approached his car and opened the driver's side door. You dragged him from his vehicle and pushed him into the back seat.
Your accomplice sat in the back seat and forced the man's head between his legs and repeatedly punched him about the face and head. The man had trouble breathing and pleaded to be let up. The accomplice then threatened to stab him and smash his face in and spoke to him callously and offensively. You repeatedly threatened to kill this elderly man and to put him in the boot of his own car. The accomplice said that he had a blood-filled syringe and he would use that.
You drove him to Queen Elizabeth II Hospital, took his wallet, demanded his PIN number to his credit card and you then went into the ATM machine there and, using the stolen credit card, took a thousand dollars from his account. You returned to the vehicle and drove to Subiaco with this elderly gentleman being held down in the rear of the car the entire time. You and your accomplice then fled the car, taking the car keys, the credit card and a further $200 in cash from the wallet. The gentleman was bleeding from facial and head injuries, sustaining cuts and abrasions and bruising to his face and requiring medical treatment.
He was obviously terrified, as one would expect, and has suffered from panic attacks since the offence. A victim impact statement from him sets out in detail the sorts of nightmares he experiences and the way in which the offence continually comes back to him. None of that is surprising. You were interviewed by detectives on 16 January and admitted the offence and have been in custody since. You entered a plea of guilty at the earliest opportunity and for that early confession and plea you will receive a substantial sentencing discount. Otherwise, there is little that can be said in your favour.
While I accept that you didn't begin to walk around Kings Park with your accomplice with a view to robbing an elderly person, you did decide to rob someone and the fact that your victim was elderly and was obviously terrified did not discourage you. Indeed, it appears that of the two of you, you behaved in a manner which he found more callous and more frightening.
Viewing the videotaped record of interview in which you refer to an elderly gentleman in fear for his life as whingeing and in which you appear to regard the callous and offensive remarks of your co-offender as entertaining does not suggest that you appreciate the seriousness of this offence. It is the case, however, that it is the first offence that you have committed that can be regarded as a violent one and you understand that this is a new and serious departure for you.
You are 41 years of age and have a criminal history which extends over a lengthy period of time although, as I have noted, it doesn't contain offences of violence and you have a lengthy history of substance abuse. You were addicted to heroin at the time of these offences. Additionally, it appears from the materials before me, that you have a number of psychiatric conditions which would benefit from treatment. In the past you haven't carried through to completion any form of treatment or counselling so far as I can discover.
Your previous response to supervision has been poor. This does not lead to great optimism about your prospects of rehabilitation, if any. However, it is said on your behalf that you are currently studying while in prison and that you accept that you need to make various substantial changes in your life if you are to keep free of violent offending in the future. It is said that you are remorseful.
It seems to me that the armed robbery alone was of some seriousness. You were in company with another and there was an assault on the victim in which you participated. Your co-offender pretended to be armed with offensive weapons and you said nothing to the contrary.One of the pretended weapons was a syringe and the violence which was used to this elderly gentleman was such that, because of his conditions, it could easily have been life-threatening. A starting point of 9 years would be an appropriate sentence for this offence. So far as the stealing of the motor vehicle is concerned it seems to me that a sentence of about 1 year would be appropriate with a further 2 years for the kidnapping referred to in count 2. That gives a starting point of 12 years' imprisonment which seems to me adequately to reflect the overall criminality of the offences.
As I have noted, you received a substantial discount because of your early plea of guilty, reducing that overall sentence to one of 9 years…".
The abovementioned offences are not only very serious in themselves but, given that they were perpetrated in company against a sole elderly and defenceless victim, they also involved conduct on the part of the applicant which was both callous and cowardly and of a kind which is especially repugnant to the general Australian community (see para 2.7 (b) of the Direction).
Paragraph 2.8 of the Direction, however, requires that any relevant mitigating factors be taken into account. The applicant provided to the Tribunal the following information as mitigating circumstances in relation to the abovementioned offences which he committed in January 1999:
"My dependence on drugs has been my crutch to handle anything, which to me was too painful. My eldest brother David died in November 1998 and it was the circumstances surrounding this, which tipped the scale towards total overload of my emotions. I was at the hospital two days before he passed away, then left to go to Kalgoorlie on a catering job. The job lasted two weeks and upon my return I rang the hospital and was told David had died and been cremated already. I felt numb and totally dead of all feelings because I had missed the chance to say goodbye to him. My parents had come over from Sydney, we were together, I remember all I could do was hug my mother and feel her sorrow.
I found out that all my family had gone out in cars, phoned around to try and contact me. I blamed myself for not being there, all I should of (sic) done was to tell them when I left for Kalgoorlie.
It was after this that I committed the crime at Kings Park. I was there, I took part in it, and still today I feel disgusted and sorry that Mr Dunwoodie was physically and mentally hurt. I am not that person, I am not a violent person. I have a father the same age. I have always been respectful of the aged, I have done volunteer work with Meals on Wheels and take them on outings."
(Exhibit A1)
The fact remains, however, that the applicant, on 4 January 1999, committed very serious offences involving violent, callous and cowardly conduct on his part towards a vulnerable member of the community and, notwithstanding the circumstances referred to in the preceding paragraph, the Tribunal finds that the first relevant factor to be taken into account in considering the protection of the Australian community – namely, the seriousness and nature of the applicant's conduct – weighs very heavily against the applicant.
The likelihood that the conduct may be repeated (including any risk of recidivism)In relation to this relevant factor, the Tribunal has had particular regard to the following matters favouring the applicant which are referred to in the evidence presented to it:
the applicant's expression of his feelings of remorse and shame regarding the offences he committed on 4 January 1999, including the fact that he wrote a letter, dated 25 January 1999, to the victim expressing his regret and shame and seeking his forgiveness (G11, p38);
the applicant voluntarily surrendered to the police on 16 January 1999 and thereafter cooperated with the authorities and subsequently pleaded guilty to the offences committed on 4 January 1999;
although the applicant has an extensive criminal record dating from 1972, the armed robbery offence committed by him on 4 January 1999 was the first offence involving violence he has committed;
the Assistant Programme Co-ordinator of the Violent Offender Treatment Program (VOTP), Sex and Violent Offender Treatment Unit, Prison Services, Ministry of Justice recommended on 9 September 2000, on the basis of the information contained in the applicant's Ministry of Justice file and the "scoring of the VOTP screening instrument", that the applicant not be required to participate in a VOTP in order to address his offending behaviour (Exhibit A5);
the Programmes Officer, Substance Abuse Resource Unit, Prison Services, Ministry of Justice confirmed on 4 October 2000 that the applicant has been undertaking individual counselling on a weekly basis since 29 August 2000 "to address his problematic use of illegal substances" and that he "has stated his intention of remaining free from illegal substances and is developing viable strategies to achieve this goal" (Exhibit A4);
the applicant's evidence that he had never had "real counselling" in the past because he did not want it, but that he now realised that he needed counselling in order to remain drug-free and to rehabilitate himself;
the applicant's evidence that since he has been in prison numerous urine samples have been taken from him to test for drugs and all such tests have been negative;
the applicant's evidence that he is presently undertaking studies in prison with a view to completing the TEE and a social welfare course through TAFE, in order to make him a better person on his release;
the judge, when sentencing the applicant on 31 May 1999, ordered that he be eligible for parole (G7, p20); and
the evidence of the applicant's sister, Ms P Pettiford, and that of his mother, Mrs D Lyons, together with letters from other family members, to the effect that they will provide support for the applicant upon his release from prison.
The Tribunal has, on the other hand, also had regard to the following matters which are referred to in the evidence before it:
the applicant has an extensive record of criminal offences, committed in 4 States of Australia over a lengthy period from 1972 to 1999, as set out in paragraphs 7-10 above;
the judge, when sentencing the applicant on 31 May 1999 in respect of the offences committed on 4 January 1999, stated that the applicant's comments and demeanour, as contained in a videotaped record of interview, did not suggest that he appreciated the seriousness of the relevant offence (G7, p21);
the judge, when sentencing the applicant on 31 May 1999, also commented:
"Your previous response to supervision has been poor. This does not lead to great optimism about your prospects of rehabilitation, if any."
(G7, p21);
a letter dated 29 March 1999 from Major Brian Watters, Territorial Addictions Consultant, Rehabilitation Services Command, The Salvation Army listing some 17 rehabilitation programmes entered by the applicant during the period from December 1982 to October 1990 and stating:
"…[the applicant] has never completed our Program (10 months). His longest term was at Miracle Haven for 6 months, then at Canberra for 8 months. Other terms were about 1 month.
I met Richard Lyons at Miracle Haven in 1982/83 and felt at that time he was sincerely seeking sobriety from his drug addiction. Since then I have encountered him casually at our different Program Centres. I am aware also of his admittances to other Programs for help, e.g. Odyssey House.
Richard is a chronic addict who seems unable to break from his habits and life of crime. Whilst he was in the safety of the Bridge Program he did maintain a drug free lifestyle and his behaviour changed, however it would appear that whilst in addiction he becomes involved in criminality.
…".
(G12, pp39-40); and
on 29 September 1999 the applicant pleaded guilty to the offence of conspiring with the co-perpetrator of the abovementioned offences committed on 4 January 1999, on a date unknown between 17 January 1999 and 14 March 1999 at Canning Vale, to pervert the course of justice upon the sentencing of the co-perpetrator in relation to those offences, and on 3 December 1999 he was sentenced by Groves DCJ to 18 months imprisonment cumulative upon the sentences he was presently serving for the offences committed on 4 January 1999 (Exhibit R1).
As regard the lastmentioned matter, the circumstances (as described in the sentencing proceedings before Groves DCJ) were that, while the applicant and his co-offender were on remand in custody prior to their conviction and sentencing for the 4 January 1999 offences, the co-offender approached the applicant and offered him the sum of $5,000 if the applicant would make a false statement to the co-offender's lawyer to the effect that he had drugged the co-offender and then threatened his life if he did not participate in committing the offences. The co-offender's lawyer attended at the Canning Vale Remand Centre on 13 March 1999 and took a statement to the abovementioned effect from the applicant. A few days later the applicant contacted his solicitor and informed him of this. The police were contacted shortly thereafter and, in a videotaped interview, the applicant admitted that he had lied to the co-offender's lawyer in order to help the co-offender get a lesser sentence or a suspended sentence for the 4 January 1999 offences. He also admitted that he had done this because he had been offered $5,000 by the co-offender. Before Groves DCJ it was submitted, on the applicant's behalf, that his primary reason for doing this was a concern for his co-offender (who is considerably younger than he) because he genuinely felt that perhaps he had led the co-offender into committing the relevant offences. In sentencing the applicant Groves DCJ said:
"I have heard what your counsel has had to say so far as the circumstances and the fact that you did have concern for your younger co-offender and seemingly the purpose of the lie which was perpetrated was that your co-offender would get a lesser sentence in respect of that offence or else get a suspended sentence but the fact of telling a lie, as I said, strikes at the very principles of justice which this court must uphold.
Of course, the other factor is that you were offered the sum of $5000 and you were prepared to do what was proposed because you were offered the sum of $5000. Now, in analysing on the one hand your concern for the younger offender and wanting to do the right thing by him and get him off with a lesser sentence, it doesn't ring true to me that that was your motivation for doing so but rather that you did it for the opportunity to gain a personal benefit for yourself, namely, the sum of $5000.
So that I regard as being the motivation or incentive for you to do what you did in these circumstances and that factor outweighs what has been described as your concern for your younger co-offender…".
(Exhibit R1, pp9-10)
In his evidence to the Tribunal the applicant said that his conduct in relation to this offence of conspiring to pervert the course of justice demonstrated that he had tried to take the blame himself for the 4 January 1999 offences, rather than to protect himself. He also said that the arrangement between himself and the co-offender was not that he would be paid $5000 in a lump sum, but rather that the co-offender would help him out financially if he "needed things" during his time in prison.
Having regard to all relevant considerations the Tribunal is not satisfied that it is unlikely that the applicant will re-offend in the future. On the contrary, the applicant's substantial record of criminal offences in Australia extending over the period from 1972 to 1999, notwithstanding the (presumed) existence of support from his immediate family, together with his history of drug addiction, suggest that it is more probable than not that he will commit serious offences, albeit not necessarily crimes of violence, in the future. His extensive criminal record, including, very significantly, his most recent conviction of the offence of conspiring to pervert the course of justice at a time when he was in custody for committing the serious offences of 4 January 1999, suggests that he has little, if any, respect for the law and the justice system. Furthermore, having regard to the applicant's history of addiction to hard drugs and his consistent record of failing to complete drug addiction rehabilitation programmes in the past, there is no reasonable basis for optimism at this stage that the counselling, which the applicant commenced to undertake on 29 August 2000 with the Substance Use Resource Unit while in prison, will be completely successful in ensuring that he remains drug-free in the future. The Tribunal also notes that no objective expert evidence was presented to it – such as reports prepared by appropriately qualified and experienced psychiatrists, clinical psychologists or social workers – regarding the likelihood or unlikelihood of the applicant's re-offending or the risk of recidivism in his case. Having regard to the abovementioned considerations, the view of the Tribunal is that the risk of recidivism, in the applicant's case, is high.
Accordingly, the Tribunal finds that the second relevant factor which must be taken into account in assessing the level of risk to the Australian community of the applicant's remaining in Australia – namely, the likelihood that the relevant criminal conduct may be repeated (including the risk of recidivism) – weighs against the applicant.
General deterrenceThe Tribunal accepts the respondent's submission that deterrence is an important weapon in reducing the number of crimes of violence, particularly those perpetrated against the elderly and those involving the use or threatened use of blood-filled syringes. The purpose of deterrence is served in the applicant's case by the imposition of a substantial sentence of a total of 9 years imprisonment for the offences of 4 January 1999. Cancellation of the applicant's visa would, however, be likely to have some additional deterrent effect regarding the future commission of such offences by non-citizens. In the Tribunal's opinion, this factor also weighs against the applicant although the weight given to it is not great.
Overall Assessment of the 1st primary consideration – the protection of the Australian communityHaving regard to all the relevant circumstances of the applicant's case, including in particular the three relevant factors discussed above, the Tribunal's overall assessment is that the 1st primary consideration – namely, the protection of the Australian community – weighs heavily against the applicant.
The 2nd Primary Consideration – the Expectations of the Australian CommunityParagraph 2.12 of the Direction relevantly states:
"The Australian community expects non-citizens to obey Australian laws while in Australia. …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…".
In assessing the likely expectations of the Australian community as regards the applicant's being allowed to stay in, or being removed from, Australia, it is appropriate, in the Tribunal's opinion, to impute to the hypothetical reasonable member of the Australian community knowledge, not only of the offences of 4 January 1999, but also of his other relevant circumstances, including those referred to in paragraphs 26 and 27 above, together with the fact that he has lived in Australia since 1968 and that all the members of his immediate family – his children, siblings and parents – live in Australia.
Having regard to all the relevant circumstances of the applicant's case it is the assessment of the Tribunal that the likely expectation of the hypothetical reasonable and informed member of the Australian community would be that, primarily on the basis of the abhorrent nature of the crime of violence perpetrated by the applicant on an innocent, elderly, defenceless and unsuspecting victim, together with the fact of his extensive criminal record over a long period and his history of chronic drug addiction and the absence of objective expert evidence that he is unlikely to re-offend, he should be removed from Australia, having forfeited his right to remain.
Accordingly, the 2nd primary consideration – namely, the expectations of the Australian community – also, in the Tribunal's opinion, weighs against the applicant.
The 3rd Primary Consideration – the Best Interests of the ChildThis primary consideration is relevant in the present case because the applicant has a daughter (Melissa) who is 5 years of age. The Tribunal notes that he also has a son (Jamie) who is aged 18 years.
The applicant's evidence to the Tribunal was that about 2 years ago Melissa's mother (who he said is a paranoid schizophrenic) took Melissa with her to Victoria where they now live with her parents, and that he has had no contact with Melissa since then. He said that he lived with Melissa's mother until Melissa was 18 months old and contributed financially to Melissa's upbringing until about October 1998 but has not contributed financially since then. He said that upon his release from prison in January 2004 (when he expects to be paroled) he intends to move to Sydney to look after his mother and to visit Melissa in Victoria when he can. He also said that he had every intention of getting into contact with Melissa and making her part of his life. He acknowledged, however, that it was in Melissa's best interests to remain living with her maternal grandparents in Victoria. As regards his son (Jamie), who lives in Sydney, the applicant said that he had had no contact with him since he (the applicant) moved to Western Australia about 8 years ago. There is no Family Court order regarding the applicant's access to Melissa, nor is there any informal agreement between the applicant and Melissa's mother regarding such access (G14, p50). No evidence was presented to the Tribunal regarding the attitude of Melissa's mother and maternal grandparents in relation to the applicant's having future contact with Melissa. The applicant told the Tribunal that he had not informed them of the decision to cancel his visa.
The Tribunal accepts, as stated in paragraph 2.15 of the Direction, that, generally, the "child's best interest will be served if the child remains with its parents". As regards the kinds of "countervailing considerations" referred to in paragraph 2.15, there is no evidence before the Tribunal that the applicant has abused Melissa in any way or that Melissa has suffered or experienced any physical or emotional trauma arising from the applicant's conduct. On the other hand, the applicant's failure to maintain any contact with Melissa for the last 2 years could be said to constitute neglect.
Paragraph 2.16 of the Direction lists various factors to which regard should be had when considering the best interests of the child. As regards the nature and duration of the relationship between Melissa and the applicant, the Tribunal is prepared to accept that their relationship was good up until 2 years ago (when Melissa was aged 3 years) but the fact is that there has been no relationship between them for the last 2 years. Although the applicant has said that he has every intention of re-establishing his relationship with Melissa when he is released from prison (the earliest date of release being 4 January 2004), such a "hypothetical prospect for developing a better/stronger relationship in future" should normally, according to paragraph 2.16 of the Direction, be given relatively less weight than the proven history of the relationship based on past conduct. As previously noted, Melissa is presently 5 years of age and, given that she has had no contact with the applicant for the last 2 years and there is no relationship between them at present and there is unlikely to be a significant, if any, relationship between them between now and the date of the applicant's release from prison, it seems reasonable for the Tribunal to conclude that Melissa's continued separation from the applicant is unlikely to have a significant, if any, effect on her.
The Tribunal also notes that no objective expert evidence was presented to it – such as reports prepared by paediatricians, child psychologists or social workers - as to the likely effect of the applicant's removal from Australia on Melissa's emotional, psychological and physical wellbeing.
Having regard to all relevant circumstances and considerations, the assessment of the Tribunal is that Melissa's best interests will not necessarily be adversely affected if the applicant is removed from Australia.
Accordingly the Tribunal finds that the 3rd primary consideration – namely, the best interests of the child – does not weigh significantly in the applicant's favour.
Other ConsiderationsParagraph 2.17 of the Direction refers to various other considerations that, where relevant, should be taken into account but which should be given less individual weight than that given to the primary considerations.
Chief amongst these other considerations relied upon by the applicant was the degree of hardship which would be caused to immediate family members lawfully resident in Australia, and to himself, if he were removed from Australia. The evidence tendered to the Tribunal in this connection included letters from the applicant's mother, Mrs D Lyons (Exhibit A3), sister, Ms P Pettiford (Exhibit A2), brother, Mr A Lyons (Exhibit A8), nephew, Mr W Pettiford (Exhibit A9), and niece, Ms R March (Exhibit A10). Mrs Lyons also gave oral evidence in which she stated that the applicant's removal from Australia would be devastating for her and especially for the applicant's father, Mr G Lyons, who is presently in very poor health. A report by Dr A Hamish Crawford, dated 18 October 2000, was tendered in evidence (Exhibit A7) which stated that Mr G Lyons had just been diagnosed with cancer of the left lung and that his prognosis was poor. Mrs Lyons said that they would not be able to afford to visit the applicant in the United Kingdom and that, in any event, the applicant's father would be too ill to travel such a long distance. The other letters from family members that were tendered in evidence referred essentially to the adverse effects on family morale, owing to the separation of a loved member of the family from the rest of the family network in Australia, that would result if the applicant were to be removed from Australia.
As regards the applicant himself, the evidence before the Tribunal is that the applicant has been in Australia for the last 32 years (since the age of 10 years), all members of his immediate family are in Australia, and his only relatives in the United Kingdom are uncles and aunts who are elderly and whom he has not seen during the last 32 years.
The Tribunal accepts that the applicant's removal from Australia would cause some hardship to his immediate family members in Australia and to himself. The Tribunal notes, however, that the applicant is not presently in a marriage or de facto relationship and that none of the members of his immediate family is dependent on him for financial support.
The Tribunal also notes, in the applicant's favour, that there is some evidence of recent attempts to rehabilitate himself, including his undertaking drug abuse counselling and educational courses while in prison. Furthermore, his conduct in prison has generally been good and co-operative.
Having regard to these other considerations, the Tribunal finds that they weigh in favour of the applicant's being allowed to remain in Australia.
ConclusionThe overall assessment of the Tribunal in relation to the primary considerations and to the "other considerations" in this matter is that the primary considerations, on the whole, weigh heavily against the applicant's being allowed to remain in Australia, whereas the "other considerations", to which (in accordance with the Direction) less weight must be given, weigh in favour of the applicant's being allowed to remain in Australia.
Having regard to all relevant considerations in this matter – especially the 3 primary considerations to which, in accordance with the Direction, the greatest weight has been given – the Tribunal concludes that, on balance, those considerations clearly weigh in favour of exercising the discretionary power to cancel the applicant's Permanent Residence Visa under s501(2) of the Act.
DecisionFor 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 Associate Professor SD Hotop, Deputy President
Signed:
.................................(sgd S Railton)................................
AssociateDate/s of Hearing 30 and 31 October 2000
Date of Decision 20 November 2000
Counsel for the Applicant Ms P Pettiford
Solicitor for the Applicant
Counsel for the Respondent Ms R Vavakis
Solicitor for the Respondent Australian Government Solicitor
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