Mark Gary Miller and Minister for Immigration and Citizenship
[2012] AATA 303
•18 May 2012
[2012] AATA 303
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0910
Re
Mark Gary Miller
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 18 May 2012 Place Brisbane The decision is set aside and a decision substituted that the applicant's visa not be cancelled.
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Deputy President PE Hack SC
CATCHWORDS
IMMIGRATION & CITIZENSHIP – Visa refusal and cancellation – criteria – substantial criminal record – risk of harm to community from re-offending – accept more risk where part of the Australian community – interests of children – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 501(2)
SECONDARY MATERIALS
Direction [41] – Visa Refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President PE Hack SC
18 May 2012
Introduction
The applicant, Mr Mark Miller, was born in New Zealand in December 1965 but has lived most of his life in this country. He has never become an Australian citizen and has resided in Australia by virtue of a Class TY Subclass 444 Special Category (Temporary) visa. Mr Miller has an appalling criminal record. On 29 February 2012, a delegate of the respondent, the Minister for Immigration and Citizenship, determined to cancel that visa. The result of that decision is that Mr Miller will be removed from Australia, presumably to New Zealand, as an unlawful non-citizen.
Mr Miller seeks a review of the delegate’s decision.
For the reasons that follow I have come to the conclusion that the decision ought be set aside and a decision made that Mr Miller’s visa not be cancelled.
The statutory scheme
By virtue of s 501(2) of the Migration Act 1958 (Cth) the Minister (or delegate) may cancel a visa that has been granted to a person if the Minter reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. A person does not pass the character test if, relevantly, the person has a substantial criminal record[1], a term defined in s 501(7) of the Act to include a person who has been sentenced to a term of imprisonment of 12 months or more.
[1] See s 501(6), Migration Act 1958 (Cth).
Here it is conceded that Mr Miller does not pass the character test.
The Minister may give directions, not inconsistent with the Act or regulations, to persons or bodies having functions or powers under the Act about the performance of those functions or the exercise of those powers[2] and the person or body (which includes the Tribunal) must comply with such a direction.
[2] See s 499, Migration Act.
Direction [41] – Visa refusal and cancellation under s 501 (Direction 41) was made by the former Minister on 3 June 2009. Its preamble recites the objective of the Act to regulate, in the national interest, “…the presence in Australia of non-citizens”. Direction 41 continues,
(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.
In the circumstances of this case it is of particular relevance to extract the following paragraphs from the “General Guidance” section of the Direction 41,
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature if any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
Part B of Direction 41 “provides direction on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa”. Those considerations must be taken into account: in every case, so far as the primary considerations are concerned and, where relevant, in the case of other considerations. The primary considerations are:
(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 the person 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)international obligations, including, relevantly for present purposes, those arising under the Convention on the Rights of the Child.
Clause 11 of Direction 41 deals with “Other considerations” that may be relevant and, if so, must be “considered” or “taken into account”. But, “generally, they should be given less weight than that given to primary considerations”. The Direction notes that other considerations include:
(a)family ties, the nature and extent of any relationship;
(b)the person’s age;
(c)the person’s health;
(d)any links to the country to which they would be removed;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
(f)level of education;
(g)whether the person has been formally advised in the past about conduct that brought the person within the visa consideration provisions of the Act.
Factual background
I do not understand what follows to be in issue.
Mr Miller was born in New Zealand in December 1968 and came to Australia with his parents and an older sister the following year. A younger sister was subsequently born in Australia. Mr Miller attended primary school, and secondary school to Year 9, in schools in Victoria where he lived with his parents and sisters. His father was, apparently, abusive towards the family and an alcoholic. Periodically the family moved to refuges to escape the father’s violence. Eventually, in about 1979, Mr Miller returned to New Zealand with his mother and sisters to escape the father’s violence. After three weeks Mr Miller’s mother sent him back to Australia to be with his father.
Around this time, and when Mr Miller was aged about 11 years, he was sexually abused by an acquaintance of his father. This, he says, had, and continued to have, a profound effect on him. In December 1979 he first appeared in the criminal courts when he was placed on probation for 52 weeks on a charge of handling stolen goods.
In August 1980 Mr Miller’s father sent him back to New Zealand to be with his mother. Within a short time he committed criminal offences and, in October 1980, was dealt with for ten offences of dishonesty – four counts of unlawful use of a motor vehicle, four of burglary, one of attempted burglary and one off theft under $100. He was placed on supervision for a year. At this time Mr Miller’s mother was unable to deal with him. She gave him up to foster care and he became a ward of the state until the age of 18. He lived in a variety of boys’ home for the next few years. In 1982 and 1983 Mr Miller was again convicted of minor offences of dishonesty and was fined. From March 1983 to February 1986, when he returned to Australia, Mr Miller held gainful employment in New Zealand and did not reoffend.
Mr Miller returned to Australia in February 1986 and has remained in this country ever since. He returned, he said, because he regarded Australia as his home, and to find his father. He was unable to do so; it appears that his father may have gone to the United Kingdom. Mr Miller has not seen his father since and presumes that he is now deceased. In 1986, 1987 and 1989 Mr Miller was dealt with for a number of minor property and driving offences culminating in a term of imprisonment for one month imposed in July 1989. Then in November 1989 he was sentenced to a total of two years imprisonment in the Melbourne County Court for offences of robbery and attempted robbery. He appears to have been released in March 1990.
Throughout the 1990’s Mr Miller continued to offend – offences of dishonesty and traffic offences in the main – and had a number of short stints in gaol. His own submission describes his conduct during this period as “somewhat out of control”[3]. In 1998, after release from gaol, he met, and formed a relationship with, Ms Nicole Camillieri. They determined to travel around Australia.
[3] Exhibit 1, page 108.
Mr Miller continued committing minor offences however in 1998, whilst in Darwin, he was the victim of a violent assault that left him with life-threatening injuries. He was placed on opiates for pain relief which he says led him to become addicted to heroin. Throughout 1998 and 1999 he continued to offend at a minor level and, in the main, in respect of traffic matters.
By early 2001 Mr Miller and Ms Camillieri were back in New South Wales. In January, and again in February, of that year he committed the offence of armed robbery. In each case he robbed his victim whilst armed a knife. The proceeds were modest but each offence was quite violent. As events transpired, Mr Miller was not dealt with in relation to these offences until 2007. When he was eventually dealt with the sentencing judge accepted[4] that Mr Miller was both addicted to heroin and under its influence when the offences were committed.
[4] Exhibit 1, pages 50-51.
In November 2011 a son was born to Mr Miller and Ms Camillieri. The child was considerably premature and spent a long period in hospital following birth.
The experience of fatherhood did not cause Mr Miller to change his ways. On 19 February 2002 he was involved in an altercation with another man in a hotel that led to him being indicted for attempted murder. The jury was unable to agree on that count and he was convicted of the offence of doing grievous bodily harm with intent to do grievous bodily harm. The Crown case was that he had
…suddenly and without any warning and without any justification, attacked [the complainant] with a knife inflicting a number of knife wounds, some of them quite serious.[5]
Mr Miller’s account was that it had been the complainant who had commenced an attack on him with a knife and that he, Mr Miller, had managed to get the knife away from the complainant, injuring his own hand in the process, and that the stab wounds to the complainant had been inflicted in response to the complainant’s attack on him. On that account, as the learned trial judge noted, it was,
…open to the jury to find that [Mr Miller] had committed the offence because the infliction of the stab wounds after the complainant was disarmed went far beyond anything that might earlier have been justified in the way of self-defence.
[5] Exhibit 1, page 60, ll 18-20.
In the result, Mr Miller was sentenced to imprisonment for five and a half years. He was sentenced on the basis that he had been attacked by the complainant rather than on the basis that he had commenced to stab the complainant without any warning or justification.
Whilst serving that sentence Mr Miller was transferred to New South Wales on 23 October 2006 under the Prisoners (Interstate Transfer) Act 1982 (NSW) for the purpose of dealing with the armed robbery offences 2001.On 25 May 2007 he pleaded guilty to those offences and was sentenced to four years imprisonment but with a recommendation for parole from 18 August 2007. Mr Miller was released in September 2007 and allowed to return to Queensland where he resumed living with Ms Camillieri, his son (now aged 6 years) and another son born to Ms Camillieri in December 2004. Whilst Mr Miller is not the biological father of the second child he was regarded as such by the family and the child. Mr Miller was able to obtain work in Queensland.
In November 2007 Mr Miller committed the offences of driving whilst disqualified and driving under the influence of alcohol. He pleaded guilty to those offences in May 2008 and was sentenced to an effective term of three months’ imprisonment. But the charges caused the revocation of his parole. He was, then, at large in the community for some eight months only.
Mr Miller remained in gaol from April 2008 until July 2009. Whilst incarcerated, he became aware that a neighbour of Ms Camillieri had been taunting her and the two children. A complaint was made to the police however the taunting continued.
Whilst Mr Miller was in gaol on this occasion the question of cancellation of his visa arose. In July 2008 he was given notice of an intention to consider cancellation. He responded to the notice and, in October 2008, a delegate of the Minister determined not to exercise the discretion to cancel Mr Miller’s visa but decided to warn him instead. Mr Miller was sent a letter dated 14 October 2008 which included the following,
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
As events transpired, Mr Miller did not heed that warning.
Mr Miller was released from gaol on 27 July 2009. On 22 August 2009 i.e. less than a month after release, Mr Miller was involved in an altercation with the taunting neighbour. Mr Miller’s account of events is that his two children were threatened by the neighbour. He went next door with a friend and assaulted the neighbour by kicking or punching him in the face or ribs causing him bodily harm. When the neighbour’s mother intervened he threatened her, saying words to the effect,
We know where you live. You better make the right decision because if I get locked up, I’ll come and burn your house down.
Then, on 23 September 2009, Mr Miller was spoken to by police in relation to this incident. That evening around 9.50 Mr Miller (with his friend), armed with a firearm, seemingly a shotgun, went to the mother’s house and discharged the firearm into the living room of that house. A short time later the weapon was discharged into a motor vehicle owned by the neighbour. Mr Miller was arrested the following day and has been in custody ever since.
On 9 February 2011 Mr Miller pleaded guilty to one count of assault occasioning bodily harm in company, two counts of threatening violence in the night, two counts of attempting to pervert the course of justice and two counts of wilful damage. He was sentenced to an effective term of four years’ imprisonment. The learned sentencing judge said this,
I accept that you did not intend to physically harm anyone in the shootings and I accept that the consumption of alcohol played a role in this offending. You fall to be sentenced on the basis that there were two separate episodes of drive-by shootings in an attempt to intimidate two potential witnesses to the offence comprising count 1 and thereby, you attempted to pervert the course of justice.
You have a very bad criminal history which relates to most parts of Australia. You have a very bad history for violence …
… Despite the contents of letters tendered on your behalf, I do not accept that you are genuinely remorseful for your offending. However, your pleas of guilty have caused a saving of time and money to the State and that is in your favour. I accept and take into account that you had a troubled upbringing and have suffered substance addiction. I also accept that at least at some stage in the past, you have endeavoured to get your alcohol consumption under control.
As a consequence of Mr Miller’s incarceration his relationship with Ms Camillieri has broken down and she has moved to Melbourne with the two children. Despite that Mr Miller continues his relationship with the two boys, by speaking to them on the telephone twice a week. More recently Mr Miller paid the costs of the family’s airfares to travel to Townsville when the children visited Mr Miller in gaol.
The decision to cancel Mr Miller’s visa was made (and served on him) on 6 March 2012. These proceedings were commenced the following day.
Application of Direction 41
The first primary consideration is the protection of the Australian community from serious criminal or other harmful conduct. The text of Direction 41 under this heading, after a reference back to the earlier stated objectives, notes that the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay include,
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.
Crimes involving violence or the threat of violence are said to be “of special concern to the welfare and safety of the Australian community”. Due regard, it is said, must be given to the extent of the person’s criminal record including the number and nature of offences, the period between offences and the time elapsed since the most recent offence.
On any measure Mr Miller has a very serious criminal record with considerable offences involving personal violence. The reality of Mr Miller’s record is that he has been in almost continuous custody since February 2002. On each occasion of his release he committed further offences within a short time and was returned to custody.
But despite his appalling record there are some matters that point to the prospect of rehabilitation. First, Mr Miller has undertaken a number of courses whilst in gaol, most recently, in February 2012, the “Getting Smart” programme. The report of that programme noted that Mr Miller was able to demonstrate the following gains,
· Increased ability to recognise high risk situations;
· Increased learning with regard to triggers, urges and cravings;
· Improved learning about goal-setting;
· Improved learning into the effects of his thoughts on emotions and behaviour.
Mr Miller is hoping to complete further courses in the community. Subject to the outcome of these proceedings he intends to spend time at a rehabilitation centre receiving assistance with his addiction to alcohol and with anger management.
Dr Bruce Kahn is an experienced forensic psychiatrist who has been responsible for Mr Miller’s treatment for depression in the past year. He accepted that it was not possible to quantify the risk of Mr Miller re-offending although he accepted that there was a risk. He did note that the risk was lower if Mr Miller remained in Australia. He was able to see some positive signs in Mr Miller. He considered that Mr Miller loved the two children and that they loved him. The relationship with the children was a positive presence on Mr Miller’s life and the fact that he wanted the relationship was, of itself, a redeeming quality. Dr Kahn saw no evidence of Mr Miller lying or exaggerating when he spoke of the relationship.
My own observations of Mr Miller are similar. He struck me as being genuine in his affection for the children and genuine in his desire to build a continuing relationship with them. What particularly struck me was his desire to avoid leaving the children with the sense of abandonment that he himself experienced at an early age. And it did seem to me that Mr Miller’s advancing years (he is now 46 years old) seem finally to be bringing a degree of maturity not earlier evident in his conduct.
But despite these matters and Mr Miller’s genuine desire to reform his life it must be concluded that there is a real risk that he might re-offend.
The second primary consideration very much favours Mr Miller. His spent virtually all of his formative years in this country having arrived as a babe in arms. Unlike the applicant in Re Wipa & Minister for Immigration and Citizenship[6] he has developed ties with the community and has spent considerable periods in employment in Australia.
[6] [2012] AATA 125.
The third primary consideration is perhaps somewhat neutral. Mr Miller has spent all but about seven years of his life in Australia. He says, correctly, that he knows no other life. As against that he commenced offending at an early age.
The final primary consideration goes by concession. The Minister accepts[7] that the best interests of the two children “would best be served by the applicant remaining in Australia”. That concession is properly made. It is supported by common sense and the opinion of Dr Kahn. There are, of course, risks in the relationship – Mr Miller may re-offend and be returned to custody, the development of the relationship will be hampered by distance and distance will, at least initially, prevent Mr Miller from playing a complete role as a parent – but on balance this consideration plainly tells against cancellation. There is no basis for distinguishing between the two children; their interests are relevantly identical.
[7] Exhibit 11, paragraph 116.
No other international obligations are relevant.
Some of the “other” considerations listed are relevant.
Mr Miller has no family ties in Australia or, for that matter, in New Zealand having lost contact with his family many years ago. He retains an amicable relationship with Ms Camillieri albeit that she does not wish to resume the relationship of de facto partner. And, of course, he has a continuing relationship with the two children.
Cancellation of Mr Miller’s visa would disrupt the ties that he does have with the Australia community. It must be accepted that his incarceration has severely limited his opportunity to develop ties outside the prison environment over the last decade however Mr Miller has developed ties that will assist him with rehabilitation and reform. Those ties will be lost to him if his visa is cancelled.
Mr Miller’s age does not tell for or against cancellation (beyond its effect in demonstrating a degree of maturation on Mr Miller’s part). His health is not good however there is no reason to think that the treatment available to him is Australia would not be available to him in New Zealand. In Mr Miller’s favour is the absence of any ties with New Zealand.
Finally, and telling in favour of cancellation, is the earlier warning of the possibility of visa cancellation.
Conclusion
The determination of the decision in this case involves the making of a judgment, informed and guided by Direction 41. It cannot be a mere mechanical operation; it must involve balancing the matters required by Direction 41 to be considered. But ultimately I am obliged to determine the preferable decision. I consider that the preferable decision is one not to cancel Mr Miller’s visa.
The first primary consideration, without more, would suggest that cancellation is preferable however that consideration is not taken in isolation. First, and as Direction 41 recognises, it is appropriate for the Australian community to accept more risk in circumstances where Mr Miller has become part of the Australian community having spent the major portion of his life in this country. There are some promising signs that Mr Miller is gaining a level of maturation that will lead him away from further offending.
But significantly the best interests of Mr Miller’s two children tell against cancellation. That consideration and the length of time that Mr Miller has spent in Australia and, to a lesser extent, the other considerations, satisfy me that the balancing required by Direction 41 requires a decision that the visa not be cancelled. The decision under review will be set aside and a decision substituted that the visa not be cancelled.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.
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Associate
Dated 18 May 2012
Date of hearing
Counsel for the Applicant
Solicitors for the Applicant
Advocate for the Respondent
26 April 2012
Dr SJ Lee
Townsville Community Legal Services Inc
Mr M Dening, Department of Immigration and Citizenship, In-House Litigation Section
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