Marsters and Minister for Immigration and Citizenship

[2008] AATA 733

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 733

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2543

GENERAL ADMINISTRATIVE DIVISION        )

Re             BRELL MARSTERS

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMrs Josephine Kelly, Senior Member

Date21 August 2008

PlaceSydney

DecisionThe reviewable decision is set aside and substituted for that decision is the decision not to cancel Mr Marsters’ Special Category subclass (TY 444) visa.

…………[sgd]…………...

Mrs Josephine Kelly
  Senior Member

CATCHWORDS

IMMIGRATION – Visa-ex – Character Test – Substantial criminal record - Whether discretion to cancel visa should be exercised – Protection and expectations of the community considered – Best interests of the child considered – Other considerations considered – Held character test not passed - Held expectation of community, best interests of child and other considerations favour non cancellation - Reviewable decision set aside – Decision substituted visa not cancelled

Administrative Appeals Tribunal Act 1975, s 43

Migration Act 1958, ss 499, 501, 501G

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Direction No 21

REASONS FOR DECISION

21 August 2008	Senior Member, Mrs Josephine Kelly
BASIC FACTS

1. Mr Brell Marsters seeks the review of the decision made on 8 March 2008 by the delegate of the Minister for Immigration and Citizenship to cancel his Special Category subclass TY 444 visa pursuant to s 501(2) of the Migration Act 1958 (the Act) ("the delegate's decision").

2.      At the hearing, Mr Marsters appeared in person, and the Minister for Immigration and Citizenship (the Minister) was represented by Mr Chand. The documents before the Tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”) which were taken into evidence, together with the other documents tendered by the parties at the hearing.  Mr Marsters, his daughter, and one of his sisters gave oral evidence in person.

ISSUES

3.       As Mr Marsters was unrepresented, his case was not presented in a technical manner.  It is therefore appropriate for me to consider whether:

(i)Mr Marsters passes the character test in s 501(6) of the Act, and, if not;

(ii)Whether I should exercise the discretion conferred by s 501(2) of the Act and set aside or affirm the decision to cancel the applicant’s visa, applying ministerial Direction No 21.

4.      For the reasons that follow, I find that Mr Marsters does not satisfy the character test, but I have decided to exercise the discretion not to cancel Mr Marsters’ visa.

LAW AND POLICY

5. Under s 501(2) of the Act, the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

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

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

6.      “Substantial criminal record “ is defined in s 501(7)

…

(7)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;

…

7.      Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.

8.      On 23 August 2001, the Minister, exercising the power under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation, under s 501 (the Direction).  The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

THE CASE PUT ON BEHALF OF THE MINISTER

9. The Minister contends that Mr Marsters is a person who does not pass the character test set out in section 501(2) of the Act because he has a substantial criminal record, that is he has been sentenced to a term of imprisonment for 12 months or more (see 501(7)(c) of the Act).

10. Next, the Minister contends that, being satisfied that Mr Marsters fails to pass the character test, the Tribunal should proceed to exercise its discretion to cancel Mr Marsters' Special Category subclass (TY 444) visa under s 501(2) of the Act.

11.     Finally, the Minister contends that the delegate's decision to cancel Mr Marsters' Special Category subclass (TY 444) visa should be affirmed (section 43(1)(a) of the Administrative Appeals Tribunal Act 1975).

CONSIDERATION

Character Test

12.     Mr Marsters did not dispute the evidence showing that he has the following criminal record:

CHARGE DATE	COURT NAME CHARGE STATION OFFENCE	COURT DATE SENTENCE
20 / 05 / 1992	BANKSTOWN LOCAL COURT ASSAULT S61	08/07/1992 1. RECOG S556A SELF $10000 GB NOT TO ASSAULT MOLEST OR HARASS OR OTHERWISE INTERFERE WITH OR INTIMIDATE THE VICTIM RECOG ENTERED
02 / 07 / 1996	BANKSTOWN LOCAL COURT ASSAULT S61	19/09/1996 COMMUNITY SERVICE ORDER WITHOUR COND : 50 HOURS
29 / 01 / 1999	BANKSTOWN LOCAL COURT ASSAULT OCCASIONING ACTUAL BODILY HARM	17 / 06 / 1999 RECOG S558 : 600H 18 MONTHS NOT ASSAULT MOLEST HARASS OR INTERFERE WITH VICTIM COSTS – COURT : S52 (LC 25974)
03 / 04 / 2000	BANKSTOWN LOCAL COURT 1. ASSAULT OCCASIONING ACTUAL BODILY HARM – T2 2. MALICIOUSLY WOUND – T1	03 / 05 / 2000 IMPRISONMENT: 15 MONTHS COMMENCING 03 / 04 / 2000 NON PAROLE 12 MONTHS
24 / 04 / 2002	BANKSTOWN LOCAL COURT CONTRAVENE DOMESTIC VIOLENCE ORDER	02 / 05 / 2002 IMPRISONMENT: 9 MONTHS SUSPENDED ON ENTER BOND S12 : 9 MONTHS SUPV NSW PROB SERVICE
01 / 07 / 2002	BANKSTOWN LOCAL COURT BANKSTOWN CONTRAVENE DOMESTIC VIOLENCE ORDER	05 / 07 / 2002 BOND S9 : 2 YEARS NOT TO ASSAULT THREATEN, HARASS, INTIMIDATE OR STALK TO TONGIA. NOT TO COMMUNICATE WITH AND NOTTO CONTACT TU TONGIA IN ANY MANNER WHATSOEVER. NOT TO APPROACH TU TONGIA AT ANY TIME. NOT TO GO WITHIN A 100METRE RADIUS OF THE PREMISES AT 25 HAROLD ST MT LEWIS OR ANY OTHER PREMISES WHERE TI TONGIA MAY RESIDE FROM TIME TO TIME
28 / 02 / 2003	BANKSTOWN LOCAL COURT 1. CONTRAVENE DOMESTIC VIOLENCE ORDER 2. CONTRAVENE DOMESTIC  ORDER	13 / 03 / 2003 IMPRISONMENT : 6 MONTHS COMMECNING 28 / 02 / 2003 IMPRISONMENT : 6 MONTHS COMMECNING 28 / 02 / 2003
30 / 06 / 2005	BURWOOD LOCAL COURT BANKSTOWN CONTRAVENE DOMESTIC VIOLENCE ORDER	18 / 10 / 2005 IMPRISONMENT : 1 MONTH COMMENCING 04 / 08 / 2005
04 / 08 / 2005	BURWOOD LOCAL COURT CONTRAVENE APPREHENDED DOMESTIC VIOLENCE ORDER	18 / 10 / 2005 IMPRISONMENT : 76 DAYS COMMENCING 04 / 08 / 2005
08 / 04 / 2006	BANKSTOWN LOCAL COURT BANKSTOWN 1. CONTRAVENE APPREHENDED DOMESTIC VIOLENCE ORDER 2. RESIST OFFICER IN EXECUTION OF DUTY – T2	29 / 05 / 2006 IMPRISONMENT : 12 MONTHS COMMENCING 08 / 04 / 2006 NON PAROLE PERIOD WITH CONDITIONS : 9 MONTHS RELEASE SUBJECT TO SUPV IMPRISONMENT : 6 MONTHS COMMENCING 08 / 04 / 2006

13.     I find that, taking into account the conviction on 29 May 2006 and sentence to 12 months imprisonment with a non parole period of 9 months for "contravene Apprehended Domestic Violence Order," and the conviction in May 2000 for "maliciously wound," for which he was sentenced to 15 months imprisonment with a non parole period of 12 months, Mr Marsters has a substantial criminal record and therefore does not pass the character test.   Given that finding, it is unnecessary to consider the alternative ground in s 501(6)(c) of the Act.

THE  DISCRETION

14. Next, I have to consider whether I should exercise the discretion conferred by s 501(2) of the Act in favour of Mr Marsters, and not cancel his visa, or against him, and affirm the delegate's decision.

15.     In exercising the discretion, I must have regard to the three "Primary Considerations" and the "Other Considerations" set out in the Direction.  I must have regard to the importance placed by the Minister on the "Primary Considerations", but should also adopt a balancing process which takes into account all relevant considerations  (paragraph 2.2 of the Direction).

16.     The three Primary Considerations are:

(a)protection of the Australian community;

(b)expectations of the Australian community; and

(c)the best interests of the child.

Protection of the Australian Community

17.     Paragraph 2.5 of the Direction states that there are three factors relevant to assessment of the level of risk to the community of the continued stay of a non-citizen:

(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 may prevent or discourage similar conduct (general deterrence)

Seriousness and nature of conduct

18.     Paragraph 2.6 of the Direction sets our examples of offences which are considered by the Government to be very serious. Two categories of crimes that are relevant in Mr Marsters' case are: 

(f)  murder, manslaughter, assault or any other form of violence against persons".

(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

19.     All Mr Marsters' convictions have been for offences involving his former partner.  The first two charges in 1992 and 1996 were for assault, the 1999 and 2000 charges were for assault occasioning bodily harm, and the 2000 charges included  "maliciously  wound".

20.     Mr Marsters' seven convictions since 2000 have been for breaching apprehended domestic violence orders, the last of which resulted in a sentence to imprisonment for 12 months.  He was also convicted at that time of resisting arrest.   These kinds of conduct are not listed as examples of very serious conduct in the Direction.  The Minister contended that the serial breaches of the apprehended violence orders are serious because it demonstrates a systematic disregard of the orders of the court and creates a situation where, because the apprehended domestic violence orders do not in any way deter Mr Marsters, his former partner fears for her safety in circumstances where the authorities are unable to protect her.   

21.     Paragraph 2.7 of the Direction requires me to consider the nature and extent of Mr Marsters' criminal record   In Mr Masters’ case, the courts have imposed a number of sentences of imprisonment. However, it is significant in my opinion, that there has been no conviction for assault or violence since 2000.  I accept that repeated breaches of apprehended violence orders are serious, however, that there has been no violence associated with those breaches supports the conclusions I come to in relation to matters relevant to paragraph 2.8 of the Direction.  There has also been no charge or conviction since Mr Marsters was freed from gaol in January 2007, although I note he was in detention briefly at the end of January 2007, and following the cancellation of his visa from about 3 April 2008. 

22.     Paragraph 2.8 of the Direction requires me to take into account mitigating factors.  In Mr Marsters' case these are important.   He was born in the Cook Islands in 1950 and educated there until the age of 12 years when he went to New Zealand.   He came to Australia with his former partner in 1984 and their daughter was born the same year.  His working life was essentially in labouring jobs.  He has apparently suffered several injuries and has not worked since 1990 but was a house-husband looking after his daughter while his former partner supported the family.  Mr Marsters has a very limited ability to read or write.  He is an unsophisticated person.  In 1998 his mother died.   I find on the evidence of his former partner and his sister that he suffered depression following his mother's death.  The evidence demonstrates that he had increasing difficulties in his relationship with his former partner. She complained to a parole officer that he would not communicate with her.  I accept his sister's evidence, set out in her letter in 2004 and repeated during her oral evidence, that his former partner bore some responsibility for the arguments that have occurred. The evidence of Mr Marsters' daughter supports that finding.  

23.     I also find that intoxication has been a significant aspect of the offences committed by Mr Marsters. He has undertaken various courses and participated in rehabilitation programs relating to anger management and alcohol abuse at various times since 1999.  Given the number of offences from that date, he clearly did not address those problems effectively.  During his imprisonment in 2006 he participated in a program to control his drinking and I find, on the evidence that he has drunk very little alcohol since leaving prison in January 2007.   

Likelihood that the conduct may be repeated

24.     Paragraph 2.10 of the Direction states that it is the Government's view that a person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism and that, in particular, matters, such as the fact that a non-citizen commits a further offence after having been warned previously about the risk of visa cancellation, are relevant to an assessment of the risk of recidivism.

25.     Mr Marsters was considered for visa cancellation in October 2004.  It was decided that, despite his criminal convictions, his visa would not be cancelled and that instead, he would be issued with a warning that the commission of any further offences would lead to his visa being reconsidered for cancellation. Despite acknowledging the warning on 25 October 2004, Mr Marsters came before the courts on three further occasions for breaching apprehended domestic violence orders and for resisting arrest.  He  was convicted and sentenced to terms of imprisonment.

26.     Mr Marsters' has demonstrated a disregard for the law by breaching the apprehended violence orders since 2002.  I find on the evidence there is risk of recidivism.   However, that risk in my view has been lessened since 2006 because he is drinking less, and his daughter has moved out of her mother's home and now has a home of her own, as a consequence of her becoming pregnant.   The evidence discloses that, on some occasions, Mr Marsters' visited his former partner's home at the request of his daughter and/or his former partner. His presence there as a result of such an invitation has at least on one occasion resulted in police attending and arresting him.  Now that his daughter is not living with Mr Marsters' former partner, there is less likelihood that he will visit her home.

General deterrence

27.     I take into account that, if I were to affirm the delegate's decision, that may prevent or discourage similar conduct by like-minded persons (see paragraph 2.11 of the Direction).

28.     In considering the protection of the Australian community, I would observe that there has been one person who has suffered violence from Mr Marsters, his former partner, and that Mr Marsters has not committed an offence involving violence since 2000.    

Expectations of the Australian community

29. I accept that the serious and repeated nature of Mr Marsters' offences is such that the Australian community would expect that a decision made pursuant to s 501(2) give significant weight to those matters. The Australian community also expects that the Act will be administered fairly and humanely (Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [35]). As conceded by the Minister, some members of the Australian community would have compassion for Mr Marsters. That part of the Australian community would take into account the following matters.

30.     Mr Marsters has lived in Australia for 24 years, he has had a limited education and consequently his ability to read and write is slight. 

31.     His daughter and new granddaughter are Australian citizens and live here.  He is very close to his daughter and they both want him to be close to his grand daughter. I find, on the evidence, that during his daughter's pregnancy and following the birth of his grand daughter until he was put into detention, Mr Marsters spent a lot of time with his daughter helping her and helping look after his grand daughter.  His grand daughter is very important to him. His sister, who gave evidence, also supports him very strongly and has assisted him over many years.  If he returned to New Zealand or the Cook Islands, he would have no one to assist him.

32.      His offences were related to drinking alcohol, which I accept he has been controlling since 2006.  He has not committed an offence involving violence since 2000.  He has committed no offence since 2006.  Also, now his daughter does not live with his former partner, the risk of his going to his former partner’s residence has lessened..

33.     In this case, in my opinion, a significant part of the Australian community would want Mr Marsters to have one more chance.

The Best Interests of the Child

34.     As Mr Marsters' daughter is 24 years of age, she is not relevantly a child whose interests should be taken into account under paragraph 2.3(c) of the Direction.

35.     However, in my opinion, Mr Marsters' granddaughter's best interests are relevant and should be considered.  The relationship of grandchild and grandparent falls within the “parental or other close relationship between a child or children and the person under consideration” specified in paragraph 2.3 of the Direction. Furthermore, paragraph 2.13 – 2.16 of the Direction does not exclude the interests of grandchildren from being taken into account.

36.     I take into account that she is only five months old and that it might be thought that there is not a close relationship between her and her grandfather at the moment, however, I consider the development of a future relationship with his granddaughter is relevant, particularly because the father of Mr Marsters' granddaughter plays no part in her life, and his daughter currently has a different partner.  

OTHER CONSIDERATIONS

37.     The Minister contends that the weight to be accorded to ‘Other Considerations’ should not normally outweigh a Primary Consideration. 

38.     Paragraph 2.2 states:

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.

39.     Paragraph 2.17 sets out  other matters that may be relevant, but:

It is the Government's view that where relevant, it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.

40.     I consider each of the Other Considerations which are relevant in this case. 

41.     Paragraph 2.17 (a) of the Direction states I must consider:

The extent of disruption to the non-citizen's family (paragraph 2.17(a)) and degree of hardship that would be suffered by immediate family members lawfully resident in Australia (paragraph 2.17(c) may be dealt with together.

42.     Mr Marsters' daughter, his grand daughter and four of his siblings reside in Australia.  The evidence is that Mr Marsters has a close relationship with his sister, who provided a written statement to the Department in 2004 and gave oral evidence at the hearing. He does not have a close relationship any of his other siblings in Australia or New Zealand. Mr Marsters' daughter has given evidence in writing and orally that she has a good relationship with her father and that she does not want him to leave Australia.  She would also like her daughter to be close to her grandfather. Mr Marsters has also expressed a desire to have a relationship with his grand daughter. The present partner of Mr Marsters' daughter has also provided a statement and gave oral evidence in support of Mr Marsters remaining in Australia.

43.     The Minister acknowledged that cancelling Mr Marsters' visa is likely to result in some emotional hardship to Mr Marsters, his siblings, daughter and her partner and his granddaughter as a result of their separation. However, the Minister argued that any such disruption can be minimised by Mr Marsters staying in touch with his family members by telephone and through his family members visiting Mr Marsters.

44.     On the evidence before me, I do not accept that Mr Marsters' sister or daughter have the resources available to travel to visit him.  His daughter has recently been allocated a public housing residence and is caring for a young baby.   Her current partner is not employed.

45.     In my opinion, cancelling Mr Marsters' visa would significantly disrupt his family and result in a significant degree of hardship to his daughter, who now has the additional responsibility of looking after a baby.  I accept that if Mr Marsters remained in Australia he would provide practical assistance and emotional support to his daughter.

46.     In relation to paragraph 2.17(d) of the Direction, ‘Family composition of the non-citizen's family in Australia and overseas,’ Mr Marsters' parents are deceased.  The only sibling with whom he has regular contact is his sister who gave evidence.  He has other siblings in Australia and New Zealand with whom he has little if any contact.  As is already clear, his daughter and grand daughter are resident in Australia.

47.     In relation to paragraph 2.17(h) of the Direction, as set out earlier in these reasons, I consider that Mr Marsters' has taken steps to rehabilitate himself since 2006 by reducing his alcohol consumption.  He has not committed an offence since leaving gaol in January 2007 and has not committed an offence involving assault or violence since 2000.   

48.      Mr Marsters held a permanent visa - Special Category subclass (TY 444) visa (paragraph 217(i).   He entered Australia on 17 April 1984 and apparently intended to stay on a permanent basis (paragraph 2.17(j) of the Direction).

49.     Mr Marsters was considered for visa cancellation in 2004 and a decision was made not to proceed with visa cancellation. Mr Marsters was given a warning on 25 October 2004 that any further convictions could result in further consideration being given to cancellation of his visa (paragraph 2.17(k) of the Direction).   He was convicted for breaching apprehended violence orders after that warning was given, and was also convicted for resisting arrest.

CONCLUSION

50. Taking into account the primary considerations, and the other considerations in the Direction as discussed above, in my opinion, on balance, the discretion conferred by s 501(2) of the Act should be exercised not to cancel Mr Marsters' Special Category subclass (TY 444) visa. The reviewable decision is set aside and substituted for that decision is the decision not to cancel Mr Marsters’ Special Category subclass (TY 444) visa.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: …….[sgd].………..

Steven Mulipola, Associate

Date/s of Hearing:  1 August 2008
Date of Decision:  21 August 2008
Representative for the Applicant:     Self-represented
Solicitor for the Respondent:             Clayton Utz