MARINEL PENAFLOR and MINISTER FOR IMMIGRATION AND CITIZENSHIP - [2012] AATA 148

[2012] AATA 148

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5597

Re

MARINEL PENAFLOR

APPLICANT

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

RESPONDENT

DECISION

Tribunal
M D Allen, Senior Member

Date 8 March 2012

Place Sydney
The Tribunal affirms the decision under review.
.........[sgd]...............................................................
M D Allen, Senior Member
Catchwords
IMMIGRATION – visa cancellation – character test – substantial criminal record – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether person a minor when person began living in Australia – length of time ordinarily resident in Australia before engaging in criminal activity – international obligations – best interests of the child – family ties – links to country to which person would be removed – hardship to applicant or immediate family – past warnings – decision under review affirmed.
Legislation
Migration Act 1958: ss 499, 501
Cases
Minister for Immigration and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81
Secondary Materials
Direction [No. 41] – Visa Refusal and Cancellation under Section 501
REASONS FOR DECISION
M D Allen, Senior Member
8 March 2012

On 5 December 2011, a delegate of the Respondent cancelled the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa on the basis that the Applicant did not pass the character test set out in section 501(6) of the Migration Act 1958 (the Act).
Section 501(2) states:
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.
Whereas s 501(6) reads, inter alia:
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))…
And s 501(7) defines substantial criminal record as:
For the purposes of the character test, a person has a substantial criminal record if:
…
(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…
…
The full extent of the Applicant’s criminal history was set out in a document headed “Chronology” prepared by the Respondent and which became Exhibit R2 in these proceedings. I note however that the last set of convictions detailed in that document, namely those of 20 December 2011, are subject to appeal both as to conviction and sentence.
The Applicant who is now aged 38 years arrived in Australia on 3 May 1986 as a 12 year old following his mother who had married an Australian citizen. His first conviction was as a juvenile on 27 November 1989.
As a juvenile, the Applicant was convicted of a number of drug, theft, dishonesty, assault and robbery offences, including a conviction for robbery in company.
As an adult, he has a lengthy criminal history including:
(a)driving offences – 16 offences, for which he received a range of punishments including terms of imprisonments of 12 months, 8 months and 6 months;
(b)drug offences;
(c)offences of theft, namely stealing, larceny, robbery and receiving stolen property – six offences, for three of which he was imprisoned for 3 months;
(d)fraud offences, namely obtaining money, property and financial advantage by deception, having a false instrument with intent to use, having possession of a false Australian travel document, and making and possessing counterfeit money – 22 offences, for which he was imprisoned for terms ranging from 5 to 18 months;
(e)stalk/intimidate with intent to cause fear or physical/mental harm;
(f)failure to appear in accordance with bail – three offences, for one of which he was imprisoned for 1 month;
(g)assault occasioning actual bodily harm – two offences, for which he was imprisoned for 18 and 23 months respectively;
(h)destroy or damage property – for which he was imprisoned for 6 months;
(i)resisting officer in the execution of duty – for which he was imprisoned for 1 month; and
(j)possess an unauthorised firearm – for which he was imprisoned for 1 month.
Given the extent of the Applicant’s criminal history and the fact he has, on more than one occasion, been sentenced to imprisonment for a term exceeding 12 months or more, I am satisfied that the Applicant fails the character test.
As I have found that the Applicant does not meet the character test mandated in s 501(6), I must consider whether the discretion in s 501(2), not to cancel the Applicant’s visa, should be exercised in his favour.
In exercising the discretion whether or not to cancel the Applicant’s visa I am required, pursuant to s 499, to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
At the time the Minister’s delegate made the decision in this matter and currently, Direction [No. 41] – Visa Refusal and Cancellation under Section 501 is in force.
Direction No. 41 states as its objective at paragraph 5.1:
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
Further guidance is given at paragraph 5.2(2) of the Direction:
In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:
(a)The nature of any harm that the person may cause to the Australian community; and
(b)The risk of that harm occurring.
Direction 41 then goes on to provide that in exercising the discretion, whether or not to cancel a visa, the decision-maker must take into account four primary considerations and seven other considerations.
The primary considerations in exercising the discretion whether to cancel a visa or not are set out at paragraph 10(1) of the Direction:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)       whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)       relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention of the Rights of the Child (CROC); and
(ii)       …
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 10.1 of the Direction reads:
Protection of the Australian Community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued entry include:
(a) The seriousness and nature of the relevant conduct; and
(b) The risk that the conduct may be repeated.
The Seriousness and Nature of the Conduct
Paragraph 10.1.1 of Direction 41 states inter alia:
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and disabled), are especially abhorrent to the whole community.
(2) The following are examples of offences and conduct that are considered serious:
…
(d)grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
(e) robbery;
…
As stated above, the Applicant has been convicted of robbery in company as a juvenile and two offences of assault occasioning actual bodily harm, for which he was sentenced to imprisonment for 18 months and 23 months respectively.
Of particular concern is that the conviction of 11 July 2002 for assault occasioning actual bodily harm, for which he was imprisoned for 18 months, was committed against his then wife. Cross-examined regarding this offence, the Applicant did not acknowledge either the offence or its seriousness and stated “I did not touch her”, which to my mind is not indicative of remorse or an ability to change his attitude.
Paragraph 10.1.1(3) of Direction No. 41 states, inter alia:
The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i)        the number and nature of offences;
(ii)       the period between offences; and
(iii)      the time elapsed since the most recent offence.
So far as the Applicant is concerned he can only be regarded as a hardened recidivist. His criminal career was summed up by Nicholson DCJ on 10 June 2011 in dealing with an appeal by the Applicant against the severity of a pattern of sentences imposed in the Local Court. His Honour said:
He was born in October in 1973. By the age of fifteen he was before the Children’s Court in 1989. He has been in trouble with the law for twenty-two of his thirty-seven years. He’s been to prison ten times since 1999, with gaps ranging from eight days to in fact the last gap before this series of offences appears to be two years. He has had two substantial periods where he has gone longer than a year; one was between September 2008 and November 2010, and one was between December 2004 and March 2006. On all other occasions he only stayed out of custody for less than a year, and on one of those occasions he only stayed out of custody for eight days. That was between 15 September 2001 and 23 September 2001…
All of us have an opportunity to pick to some extent [sic] the kind of life we live and where we live. The choices that are being made by this appellant would appear to be that he prefers all male company in the confines of a paramilitary organisation with a fairly structured routine. It would appear that he finds himself more comfortable in gaol than in a community and that is a fairly sad situation. He will be able to say on all of those occasions that he is in gaol, “Well gee whiz it is not really my fault, it is the fault of the drugs I take. They make me an addict”…
The Risk that the Conduct May be Repeated
The Applicant in these proceedings stressed that he had changed and that were his visa not to be cancelled he would be a reformed character.
The protestations by the Applicant of his having changed might carry more weight but for the fact he made the same assertions in 2006, when it was proposed to cancel his visa as a result of his criminal behaviour. At that time the Applicant said:
Im [sic] aware that I’ve got a lot to make up for regarding my criminal record which Im [sic] paying for dearly.
However, I beleived [sic] that I can and will change my way of life & give my children best [sic] chance in life as well as myself in this country if Ive [sic] been given another chance.
On 21 September 2006 a decision was made not to cancel the Applicant’s visa. On 18 December 2007 his parole was revoked and on 5 February 2009 he was convicted of driving a vehicle with an illicit drug present in his blood.
The Applicant has blamed drugs for his offending behaviour. Whilst in prison, he has not undertaken any courses directed towards dealing with drugs or alcohol, nor any courses on anger management.
I understand the Applicant’s evidence that no such courses have been offered to him, and that changes from one place of incarceration to another make it difficult for him to enter such courses; notwithstanding, the fact remains that he has not attended courses in anger management or drug and alcohol counselling.
I also take into account that in the past the Applicant has failed to comply with directions of the NSW Probation and Parole Service, and parole has been revoked.
A report by the NSW Probation and Parole Service dated 15 August 2000 stated that although being directed as part of a recognisance to be of good behaviour and to attend drug and alcohol counselling, the Applicant had attended on one occasion only and then withdrew from the programme.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81 Davies J, sitting as President of this Tribunal, said at N133:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again… and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. (Authorities omitted)
As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493 that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far-fetched or fanciful and that the degree of probability of its occurrence is quantitatively low.
Given the Applicant’s history and his failure to respond to parole obligations, together with the fact he has previously been warned of the possibility of visa cancellation but went on to commit further offences, I am satisfied that there is a real risk of the Applicant committing further offences if he is allowed to remain in Australia.
WHETHER THE APPLICANT WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
The Applicant was aged 12 when he arrived in Australia. Apparently his mother had married an Australian citizen, and although the Applicant did not immediately accompany his mother to Australia he later joined her.
THE LENGTH OF TIME THAT THE APPLICANT HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA
As stated above, the Applicant was aged 12 years when he arrived in Australia. He committed his first offences as a juvenile aged 15. His first period of incarceration was at age 17 years, 11 months.
INTERNATIONAL OBLIGATIONS
The only potentially relevant obligation in this matter is the Convention on the Rights of the Child.
Paragraph 10.4.1(4) of Direction 41 reads:
Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors, which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
The Applicant has seven children from four different mothers. The eldest child is now 21 and the second eldest is 18. The Applicant’s first three children are as a result of his marriage, but those children no longer have any contact with their biological father.
A NSW Probation and Parole Service report of 15 August 2000 said in relation to the Applicant’s former wife and their three children:
Contact with Mr Penaflor’s mother and wife revealed that Mr Penaflor’s drug use continues, he has made threats towards his wife and she has filed for an Apprehended Violence Order. His mother stated that his wife had to move to alternative accommodation as she feared for her children’s safety as well as her own.
Apart from his youngest child born 25 July 2010, I am unsure as to the degree of contact the Applicant has with his other children. The Applicant said in evidence that he does not see his eldest three children and sees the others “when the mothers let me”.
A NSW Probation and Parole Service report of 18 April 2006 said in relation to the Applicant:
Mr Penaflor has been in a defacto relationship for a period of two years. They have a three month old child from this union. The offender was in a relationship prior to this for a period of three years and reportedly has a six year old child from this union. He said that he has occasional contact with this child. Mr Penaflor stated that before this relationship he was married for a period of 10 years. Resulting from that union he reportedly has three children ages 10, 12 and 15 years. He indicated that he has not had contact with these children since 1999.
I find it significant that the Applicant’s then solicitor in a submission to the Respondent said:
Some of his previous partners were requested by Mrs Penaflor to provide statements however all but one had refused as they were reluctant to get involved.
The solicitor also conceded in her submission that the Applicant’s role in his children’s lives had not been significant due to his imprisonments and separations from their mothers.
The mother of the Applicant’s youngest child supported the non-cancellation of the Applicant’s visa, as she wishes her child to have a relationship with the Applicant.
In evidence, the child’s mother denied that she and the Applicant were ever in a “relationship”, and there is no evidence that the Applicant and the child’s mother will attempt to form any relationship once the Applicant is released from gaol. I can only conclude that any contact the Applicant will have with this child will be sporadic, as opposed to a structured access programme or the stability of a family.
The child is currently aged 19 months and the Applicant has been in prison since 22 November 2010 to date. He has therefore played no real part in the child’s upbringing and, despite some gaol visits, it could not be said that the child “knows” the Applicant.
Given the Applicant’s neglect of his other children I am doubtful as to what part he would in reality play in the life of his youngest child.
All in all I am satisfied that the rights of the child (children) do not, in this case, outweigh the protection of the Australian community.
OTHER CONSIDERATIONS
Direction 41 lists at paragraph 11(3) seven other non-primary considerations that might be taken into account in considering whether to cancel a visa, if relevant to the circumstances of the Applicant.
Family ties – the nature and extent of any relationship: the mother of the Applicant’s youngest child denied in evidence that they were in any “relationship”. The only person who would be affected by the cancellation of the Applicant’s visa is his mother and, to a lesser but still real extent, her partner.
Both the Applicant’s mother and her partner gave evidence. I accept the mother’s evidence that to a large extent her son’s troubles began with the abuse he suffered from the Australian citizen the mother initially married. She has divorced that man and the Applicant’s present partner has tried to assist the Applicant in many ways.
I have no doubt that the Applicant’s mother will be severely affected if her son’s visa is cancelled. She is not in good health and of course her son’s deportation will have an adverse effect. Her partner suggested that if the son’s visa is cancelled, he and the Applicant’s mother might themselves move to the Philippines. I acknowledge that medical facilities in the Philippines will not be as advanced as those in Australia.
Various references were tendered on the Applicant’s behalf. I place very little weight on this evidence as the referees were either related to the Applicant or were not in a position to fully assess his character in the context of the offences committed by him. Some of the information given by the referees was wrong.

Links to the country to which the Applicant would be moved: the Applicant arrived in Australia aged 12 years but has visited the Philippines on three occasions, namely in 1990, 1995 and 2000. He says he can speak Tagalog, the language of the Philippines. Although he has no siblings in the Philippines his mother has a father, a step-brother and sisters. The Applicant therefore has some relatives in the Philippines although to what extent they will welcome and assist the Applicant is unknown.
Hardship to the Applicant and his immediate family: as pointed out above, if the Applicant is removed from Australia it will be a cruel decision as far as concerns his mother. As for the Applicant, I see no reason why he could not adapt to life in the Philippines. He is in good health and apparently has a working knowledge of the language. When not in prison he has been able to obtain low-skilled employment. Although health reasons may restrict his mother’s ability to visit him, regular telephone contact could be maintained
Past warnings: the Applicant was advised by letter dated 21 September 2006, and noted as received on that day, that conviction for any further offences would result in a fresh assessment being made to again consider cancellation of his visa. The Applicant then had his parole revoked on 18 December 2007 and was convicted of various offences commencing 5 February 2009.
DECISION
Notwithstanding that the Applicant’s removal from Australia will cause very real suffering to the Applicant’s mother, her interests must be subordinated to the interests of Australian society as a whole.
Similarly, although the Applicant’s children, especially his youngest, will be deprived of contact with the Applicant, the protection of the Australian community outweighs that factor.
The Applicant is a serial offender and I am satisfied that there is a real risk that he will re-offend and that the protection of the Australian community outweighs all other factors.
The decision under review is affirmed.

I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

.....[sgd]...................................................................
Associate
Dated 8 March 2012

Date(s) of hearing 20 February 2012

Applicant In person

Solicitors for the Respondent Ian Temby, Minter Ellison

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5597
Re	MARINEL PENAFLOR
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

Tribunal	M D Allen, Senior Member
Date	8 March 2012
Place	Sydney

Date(s) of hearing	20 February 2012
Applicant	In person
Solicitors for the Respondent	Ian Temby, Minter Ellison