Martinez and Minister for Immigration and Citizenship
[2011] AATA 518
•28 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 518
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1127
GENERAL ADMINISTRATIVE DIVISION ) Re Alejandro Toro Martinez Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date28 July 2011
PlaceSydney
Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in the applicant’s favour so that his visa is not cancelled.
....................[sgd]......................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – decision under review set aside
RELEVANT ACT
Migration Act 1958 (Cth): s 501
Migration Legislation Amendment Act (No 1) 2008
CITATIONS
Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511
Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528
Re Toro Martinez and Minister for Immigration and Citizenship [2009] AATA 714
Martinez v Minister for Immigration and Citizenship (2010) 115 ALD 363; (2010) 268 ALR 39; [2010] FCA 448
Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; (2008) 102 ALD 521; [2008] FCAFC 132
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445
Re RCLN and Minister for Immigration and Citizenship [2011] AATA 418
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
US Department of State Colombia: Country Specific Information retrieved 25 June 2011
US Department of State, Bureau of Consular Affairs Travel Warning Colombia dated 5 March 2011
US Department of State Background Note on Colombia dated 4 October 2010
REASONS FOR DECISION
28 July 2011 Mr R P Handley, Deputy President 1.Following Mr Toro Martinez’s successful appeal in the Federal Court from the decision of the Tribunal dated 19 June 2008 in ReToro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, on 21 May 2009, Rares J ordered the issue of a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus ordering the Tribunal to hear and determine the proceedings according to law: Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528 (Toro Martinez (2009)).
2.Mr Toro Martinez then sought a decision on a preliminary issue – whether the power to cancel a visa under s 501(2) of the Migration Act 1958 (the Act) was capable of applying to his visa. On 21 September 2009, I concluded that it could: Re Toro Martinez and Minister for Immigration and Citizenship [2009] AATA 714. Mr Toro Martinez appealed against this decision to the Federal Court where Stone J dismissed the appeal and upheld my decision: Toro Martinez v Minister for Immigration and Citizenship (2010) 115 ALD 363; (2010) 268 ALR 39; [2010] FCA 448. Mr Toro Martinez appealed against this decision to the Full Federal Court but, ultimately, withdrew his appeal.
3.The subject of the present proceedings is the review of the substantive decision made by a delegate of the Minister on 10 March 2008 to cancel Mr Toro Martinez’s visa because of his substantial criminal record. On 18 March 2008, Mr Toro Martinez applied to the Tribunal for a review of that decision.
Background
4.Mr Toro Martinez was born in Colombia in 1953 and is aged 58. He is a Colombian citizen. Mr Toro Martinez moved to the United States (US) to join his family there in 1969 where he completed his education, trained as a gem polisher and commenced working in a jewellery business. He also later co-owned a video store in New York with his brother-in-law. He met an Australian citizen in 1979 and they were married in New York in 1984. Their daughter, Ms B, was born in the US in 1983. Ms B is now an Australian citizen and resident in Australia.
5.Mr Toro Martinez moved to Australia with his wife and daughter in 1988 and was granted permanent residency in 1989. However, his relationship with his wife deteriorated, they separated in 1996 and Mr Toro Martinez asked her for a divorce. In 1997, Mr Toro Martinez commenced a relationship with Ms H, also an Australian citizen. Mr Toro Martinez and his wife were eventually divorced in 2002 and he and Ms H were married in 2009.
6.Mr Toro Martinez has the following convictions:
·“Failure to produce statement of assets & liabilities and cost of living statement by 24 December 1990” and “failure to attend conference and give evidence (on 2 January 1991)” – convicted on 13 February 1992 at St James Local Court and fined $400.
·Being “knowingly concerned in the importation of not less than a trafficable quantity of a prohibited import (cocaine)” in December 1996 – he pleaded guilty in the NSW District Court and was sentenced on 26 November 1999 by Judge Ainslie-Wallace to 3 years and 6 months imprisonment with a non-parole period of 2 years. The sentence was increased by the NSW Court of Criminal Appeal to 6 years imprisonment with a non-parole period of 3 years.
·Being “knowingly concerned in the importation of a commercial quantity of a prohibited import (cocaine)” in December 1996 – he pleaded not guilty in the NSW District Court and was sentenced on 26 July 2002 by Judge Hock to 12 years and six months imprisonment, commencing on 9 June 2001, with a non-parole period of 7 years.
7.In his Statutory Declaration dated 26 August 2010, Mr Toro Martinez explained that the 1992 Local Court conviction came about as a result of advice received from his then accountant that Mr Toro Martinez need not attend the court hearing to which he had been summonsed and that the accountant would personally take care of the matter, which concerned Mr Toro Martinez’s tax affairs. Mr Toro Martinez said that when he found out about the conviction, he apologised to the Court and paid the fine. I have included reference to Mr Toro Martinez’s conviction in this matter for completeness’ sake but I have not otherwise referred to it since, in my view, it is not relevant to the issues under consideration.
8.On 10 March 2008, a delegate of the Minister decided to cancel Mr Toro Martinez’s Transitional (Permanent) (Class BF) visa and he was notified of this by letter dated 14 March 2008. On 18 March 2008, Mr Toro Martinez applied to the Tribunal for a review of the decision. On 8 June 2008, Mr Toro Martinez was released on parole and taken into immigration detention at Villawood. On 19 June 2008, the Tribunal affirmed the Minister’s decision. On 24 July 2008, he was released from immigration detention following a Federal Court decision in an unrelated matter, Sales v Minister for Immigration and Multicultural Affairs (2008) 171 FCR 56; (2008) 102 ALD 521; [2008] FCAFC 132, which had the effect of rendering the decision to cancel Mr Toro Martinez’s visa ineffective. However, on 6 November 2008, following the Migration Legislation Amendment Act (No 1) 2008 taking effect, which retrospectively validated the decision to cancel his visa, Mr Toro Martinez presented himself voluntarily to the Department of Immigration and Citizenship (the Department) and he was returned to immigration detention at Villawood.
9.As stated above, on 21 May 2009, the original Tribunal decision of 19 June 2008 was quashed by the Federal Court and, on 2 September 2009, Mr Toro Martinez was moved into community detention, and has been on parole, living with his wife, since that time. His parole will expire on 8 June 2013.
RELEVANT LAW AND POLICY
10.Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that 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”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
11. Mr Toro Martinez has been sentenced to two significant terms of imprisonment, detailed above, for offences connected with the importation of cocaine into Australia. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Toro Martinez’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
12. The ‘primary’ considerations in Direction No 41 are set out in paragraph 10(1):
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(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 on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(Original emphasis.)
13. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
PRIMARY CONSIDERATIONS
14. The ‘primary’ considerations relevant in Mr Toro Martinez’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and relevant international obligations.
The protection of the Australian community
15. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
The seriousness of the conduct
16. With regard to the seriousness of Mr Toro Martinez’s conduct, the Tribunal notes that the “importation or trafficking of trafficable or commercial quantities of illicit drugs” is among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41.
17. Paragraph 10.1.1(3) of Direction No 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
18. The importation of drug offences for which Mr Toro Martinez has convictions are very serious and the significant harm drugs such as cocaine cause to the Australian community is well documented. In relation to his first drug offence conviction, Mr Toro Martinez said he was introduced to a man who was a friend of his wife’s who asked for his assistance in translating a list of chemicals needed for the processing of cocaine which had been imported into Australia. The man told him his family was being threatened in Colombia and, because Mr Toro Martinez’s uncle had been murdered by FARC (Revolutionary Armed Forces of Colombia) guerrillas, Mr Toro Martinez was sympathetic and agreed to help with the translation. Mr Toro Martinez did not receive any payment for this.
19.In sentencing Mr Toro Martinez in the District Court of NSW on 26 November 1999, Judge Ainslie-Wallace noted that Mr Toro Martinez:
… conceded that from 19 December [1996] he overstepped his own role as translator and became involved in the scheme to extract the cocaine from the plastic. He explained it by saying that he became caught up in the excitement.
20.Judge Ainslie-Wallace said she “formed the view that he was giving a frank account of his involvement in this scheme and how that involvement came about.” In sentencing Mr Toro Martinez, she took into account “the expressions of remorse which are both implied from the plea and are explicit in the evidence of the prisoner given on sentence.” Her Honour noted that Mr Toro Martinez had cooperated with NSW authorities and consented to the forfeiture of his property. She found this added to his expressions of contrition and took this into account to Mr Toro Martinez’s credit.
21.In sentencing Mr Toro Martinez in respect of the second drug offence on 26 July 2002, Judge Hock said she was satisfied that Mr Toro Martinez was the principal in respect of the offence (which also took place at approximately the same time as the first offence in December 1996). Her Honour found that Mr Toro Martinez “not only arranged for the purchase and importation of the cocaine from South America, but that he also had overall control of the importation from start to finish”. She noted:
The offender had absolutely no regard to the harm dissemination of cocaine causes to the community, and his motivation was purely financial gain. …
He did not give evidence before the jury or on sentence, and the only material tendered on his behalf were certificates of attainment in courses such as communication and keyboarding, gained while he has been in custody.
22.Judge Hock found:
… on the material before me, his prospects of rehabilitation appear bleak. Further, there is absolutely no contrition. In fact the offender mounted a vigorous attack on his wife, the main Crown witness, to suggest she was behind the importation and it had nothing to do with him. Clearly, the jury did not accept that was the case.
23.Mr Toro Martinez denied and continues to deny having had any knowledge of or involvement in the second drug offence for which he was convicted. In his statutory declaration dated 26 August 2010, he said:
59 … I accept that I was tried and convicted for that offence, and I have served my sentence for that offence. In continuing to deny my involvement in those events, I do not for a moment suggest that the importation of cocaine is anything other than wrong. I do however refuse to accept that I had any involvement in that matter.
60. I am fully aware that in refusing to admit that I took part in this offence, I may harm my prospects of having the Tribunal overturn my visa cancellation, but I refuse to say something that is not true. …
24.I note that Mr Toro Martinez did not give evidence at his trial in respect of the second offence. He explained this as follows:
58. I was originally tried in 2001 and there was a hung jury. I was re-tried in February 2002. At that time my ex-wife, Mr Boyd and my ex-mother-in-law gave evidence against me. I did not wish to involve my daughter in that trial, or to call her to give evidence for me because she was in a very bad state of health, given her mental health at that time. She had attempted suicide not long before. Consequently, I did not give myself give evidence at those trials, as I did not want to involve my daughter in a conflict between me and her mother. …
25.Mr Toro Martinez’s daughter, Ms B, has provided statutory declarations dated 2 July 2008 and 26 August 2010. In the first statutory declaration, she stated that her father was not involved in the offence as claimed by her mother and was not living in the house at the time of his alleged involvement. She said when she was asked to give evidence about these matters, “I was not in a stable state. In the year 2000 I had attempted suicide.” She went on to describe the reasons for her doing so and her subsequent treatment in hospital. Ms B said “I now feel strong enough to sware [sic] on oath to certain matters that may affect the finding of my father’s innocence of which I have previously been incapable of doing.”
26.Mr Toro Martinez has also provided a statutory declaration from his ex-mother-in-law dated 26 October 2008 in which she states that she was “coerced” unfairly into giving evidence at Mr Toro Martinez’s trial.
27.In giving oral evidence at the Tribunal hearing on 12 July 2011, Mr Toro Martinez was asked why, given his daughter’s evidence, he had not sought to have his second drug conviction overturned. He said he had discussed this with his wife, Ms H. They have decided to try and avoid any further involvement in court proceedings. Apart from the anxiety this would cause, Mr Toro Martinez said he had spent all his money in his defence to no very good outcome.
28.It is well-established that the Tribunal cannot go behind the essential facts upon which a person was convicted and sentenced. In its decision in Minister for Immigration and Citizenship v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197, at [40], the Full Federal Court said:
... [I]t is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
29.However, in relation to the Tribunal considering the circumstances under which a crime is committed, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, at 370, Katzmann J referred to an earlier decision of the Full Federal Court which had considered this issue:
77. As the Full Court explained in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 at 653:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. [Emphasis added.]
…
78. Their Honours acknowledged “that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community”. But they added:
However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel.
30.Mr Potts, for Mr Toro Martinez, submitted that Mr Toro Martinez’s refusal to accept his guilt in respect of the second offence, driven by his deeply held belief that he had no involvement, should not be held against him.
The risk that the conduct may be repeated
31.With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Toro Martinez’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders.
32.All the evidence before the Tribunal indicates that since his incarceration, Mr Toro Martinez’s conduct has been exemplary. Despite a long period of imprisonment, he was a model prisoner. He incurred no disciplinary charges, he undertook rehabilitation programs including educational courses, and received excellent work reports for being hard-working, reliable and conscientious. He also converted to Buddhism (in June 2005) and states (in his statutory declaration dated 26 August 2010) that:
68. … I remain a committed and practising Buddhist. Buddha says that I have to assume responsibility for my acts, which is only logical, and be conscious of what I say, what I do and the actions that I undertake.
33.Mr Toro Martinez provided supporting letters from the Reverend Di Langham, chaplain, and coordinator of religious/cultural activities at Cessnock Correctional Centre (Cessnock CC), the Venerable Thubten Chokyi, Buddhist chaplain at Cessnock CC, and Graeme Lyall AM, Buddhist chaplain at the John Moroney CC. Ms B commented that as her father began to adopt Buddhist perspectives, “he became very calm and a strong religious and personal growth started to influence his life” (statutory declaration dated 2 July 2008, attachment A). She said he is changed man and “through mental, spiritual and physical growth has learnt the error of his mistakes”.
34.The Applicant provided the Tribunal with a psychological assessment dated 16 August 2010 from a forensic psychologist, Laura Durkin. Ms Durkin said that based on her current assessment, the risk of Mr Toro Martinez reoffending is low. The Minister provided the Tribunal with a report dated 22 November 2010 from Dr Kipling Walker, consultant psychiatrist, who agreed with Ms Durkin’s assessment of the risk of Mr Toro Martinez reoffending being low.
35.Mr Toro Martinez has been on parole since his release from prison on 8 June 2008, noting that he was in immigration detention from 8 June 2008 to 24 July 2008, and from 6 November 2008 to 2 September 2009. A report dated 10 June 2011 from Stephen Kleboe, Probation and Parole Officer, states:
Mr Martinez was supervised by this Service under the terms of a Parole Order between 8 June 2008 and 8 June 2011. Mr Martinez presented nil concerns throughout that time and maintained status as low risk offender.
36.Mr Potts noted a report dated 11 March 2011 by the Commonwealth and Immigration Ombudsman to the Minister which concluded:
15. Mr Toro Martinez has been detained for a cumulative total of 41 months, with 19 months residing in Community Detention. He remains in Community Detention while there is an ongoing merits review. He has been assessed as a low risk to the community and has a history of compliance with the requirements of his detention. The Ombudsman makes no recommendation in this report.
37.In his submissions, Mr Potts pointed to there being no evidence of any discreditable conduct on Mr Toro Martinez’s part since December 2006 and asked, rhetorically, what more could Mr Toro Martinez have done to show that he has reformed. I am certainly impressed by the evidence that supports this and am satisfied from the above evidence that Mr Toro Martinez has undergone significant rehabilitation, and find that since his incarceration, his conduct has been exemplary. I note that he has the support of a loving wife, Ms H, and of his daughter, Ms B. He has secure accommodation and plans for income earning ventures when his future is settled, both helping his wife in her business and trading in handcrafted pieces sourced from South America. Despite the serious nature of the offences for which Mr Toro Martinez has been convicted, I am satisfied that the risk of his reoffending is extremely low and the threat he poses to the Australian community is absolutely minimal.
Whether he was a minor when he began living in Australia
38.Mr Toro Martinez was aged 32 when he first visited Australia in 1985. However, it was not until 1988, when he was aged 35 that he began living in Australia and he was not granted a permanent resident visa until 4 May 1989. In Rosson v Minister for Immigration and Citizenship [2011] FCA 194; (2011) 191 FCR 390, at 396 [21], Rares J said:
In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).
39.Ms Linacre, for the Minister, submitted that Mr Toro Martinez failed in his duties and responsibilities by being involved in the importation of drugs and this consideration therefore weighs in favour of cancellation. While this is so, in my view, in Mr Toro Martinez’s case, in the light of other considerations, this should not be accorded any significant weight.
Length of time ordinarily resident
40.The third primary consideration relevant in Mr Toro Martinez’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. Mr Toro Martinez had been living in Australia for eight years when he was involved in serious criminal misconduct in 1996. The Minister contends that I should take into account that for two and a half years of this eight years Mr Toro Martinez was on remand for charges that were eventually ‘no billed’ and, during this time, he was not living in the community. Judge Ainslie-Wallace and Judge Hock both made brief reference to this period on remand in their sentencing remarks. There is no other evidence available to me about this and given that the charges were dropped, in my view, it is not appropriate that I should take this period on remand into account.
41.In any event, given that Mr Toro Martinez had been in Australia for a number of years before becoming involved in criminal activity involving drugs in December 1996, I am satisfied that this third primary consideration should be treated as a neutral consideration.
International Obligations
42.Mr Potts submitted that Australia has international obligations to Mr Toro Martinez because of the well-founded fear that he risks serious harm from criminal and/or terrorist groups if he is returned to Colombia. Therefore, to return him there would be in breach of Australia’s implicit non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR). This fear stems from the fact of his having family outside Colombia – in the US and in Australia – and of his being a member of a family previously targeted for extortion. Mr Toro Martinez’s sisters, one living in New York and the other in California, and his aunt who also lives in New York, have provided letters stating that they fear for Mr Toro Martinez’s safety if he has to return to Colombia. Mr Toro Martinez’s uncle, Efrain Martinez, was murdered by FARC guerrillas on 1 May 1988 when he refused to pay ‘protection money’.
43.An ‘International Obligations and Humanitarian Concerns Assessment’ dated 9 August 2007 prepared for the Department concluded that while the overall security situation in Colombia remains poor, the lack of any substantial claim by Mr Toro Martinez as to why he feels that he may be targeted leads to the conclusion that there are no substantial grounds or a real risk that Mr Toro Martinez will be subjected to torture or to cruel, inhuman or degrading treatment or punishment if he returned to Colombia. The Assessment states that the fact that Mr Toro Martinez has relatives residing in the US only marginally increases the risk. I note that this Assessment is now somewhat out of date, the sources relied upon dating from 2006 and 2007.
44.The Applicant has provided the Tribunal with some further information about the security situation in Colombia. Travel advice provided by the Department of Foreign Affairs and Trade dated 26 August 2010 states:
We advise you to exercise a high degree of caution in Colombia because of the high threat of terrorism and criminal activity. Terrorist, insurgent and paramilitary groups are active throughout Colombia and there is a high risk of kidnapping, including of foreigners. …
Colombia has one of the highest rates of kidnappings in the world. Foreigners, including children, have been kidnapped and murdered.
45.A US Department of State Country Specific Information for Colombia report dated 25 June 2010 and a US Department of State Travel Warning dated 5 March 2010 also refer to the high incidence of violent crime and kidnapping. The earlier report states that while the incidence of kidnapping has diminished, “Kidnapping remains a serious threat. American citizens have been the victims of violent crime, including kidnapping and murder.” A US Department of State Background Note on Colombia dated 4 October 2010 provided by the Minister states that “Peace efforts with the FARC have stalled. … As of May 2009, more than 50 hostages were being held by FARC.” It appears that rural areas are more prone to such violent crime than the larger cities and that the incidence varies between different areas of the country.
46.I am not satisfied that the information provided establishes that Australia would be in breach of its international obligations if Mr Toro Martinez were returned to Colombia. In my view, the facts are not as clear cut as those in Re RCLN and Minister for Immigration and Citizenship [2011] AATA 418, to which I was referred. The threat to security is seemingly not associated with the State and appears to be focused in particular areas which it may be possible for Mr Toro Martinez to avoid. I note his evidence is that his only remaining relative in Colombia is his uncle, who is aged 86 or 87, and through whom he would be likely to try and re-establish contacts. It is not clear to me whether his uncle lives in an area where the risk to security is heightened. However, I do appreciate, as Mr Toro Martinez points out, that if it is well known in the area that he has family in the US, and there is a heightened security risk, this could make him a target for extortion. In my view, this concern, which in my view is reasonably founded, is more appropriately considered as an ‘other consideration’, as to which see below.
OTHER CONSIDERATIONS
47.As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Toro Martinez’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Colombia, the hardship that may be experienced by both Mr Toro Martinez and his immediate family members in Australia, and his education.
48.The Tribunal was provided with two statutory declarations from Ms H who also gave evidence at the hearing. I am satisfied that she and Mr Toro Martinez have a strong and loving relationship which has endured through many years during which Mr Toro Martinez has been in prison. I note that NSW Department of Corrective Services records indicate that Ms H visited Mr Toro Martinez in prison over 800 times, usually at least twice a week. Ms H said she was not aware of Mr Toro Martinez’s involvement in drug offences at the time they met and, at the time he was arrested, they had already formed a close relationship. She was “completely shocked” when he was arrested and remanded in custody.
49.Ms H said she was, however, aware when they were married (after their relationship had endured for 12 years and when Mr Toro Martinez was released into community detention) that Mr Toro Martinez might have to return to Colombia, but she was willing to take the risk because she loves him and wanted to be his wife. She said she would not be prepared to move to Colombia. It is not a safe environment and she cannot speak Spanish. She would also be unable to run her graphic design business from there because of time differences, deadlines and the need to respond quickly to the needs of clients. For her to even visit Mr Toro Martinez in Colombia, she would need reassurance that it is safe to do so. Currently, she is supporting her husband financially and while she would try and continue to do so if he is returned to Colombia, it would be hard. The economic climate of the past two years has been difficult for her business.
50.Ms H said she is close to her family. Her parents live in Queensland and her sister lives in Sydney. Her relationship with Mr Toro Martinez’s daughter, Ms B, while difficult initially, is now positive. If Mr Toro Martinez is returned to Colombia, Ms H will continue working in Sydney with a view to moving to Queensland in due course to be near her family. Ms H has purchased a unit on the Gold Coast as a home for her and Mr Toro Martinez.
51.As mentioned above, the Tribunal has also been provided with two statutory declarations from Mr Toro Martinez’s daughter, Ms B, who also gave oral evidence by conference telephone at the hearing. Ms B and her partner are living in Brisbane where Ms B is a student. In her statutory declaration dated 26 August 2010, Ms B said she and her father have a very good relationship and if he has to go back to Colombia it would have a “huge effect on me” and cause “real emotion [sic] damage to me”. Ms B is currently having IVF treatment and she and her partner are hoping to have a child: “It is of vital important [sic] to me that he is a part of my children’s lives.”
52.Ms B said she could not afford to go to Colombia to visit Mr Toro Martinez and she would only be able to keep in contact with him by email and by mobile phone. She would also have concerns for her safety if she visited him there.
53.Mr Toro Martinez gave evidence that the only relative he has in Colombia is his uncle who originally stayed because of his farm. Even his uncle’s sons have moved to the US. Mr Toro Martinez moved to the US when he was aged 16, and has not visited Colombia since 1995 when he went there to meet his father and two sisters to pay their respects at Mr Toro Martinez’s mother’s grave following her death there from cancer in 1993 (statutory declaration dated 26 August 2010). He was in Colombia for six months staying with friends, with friends of his sisters’ and in hotels. During this time he did not work, relying on his savings from his time working in New York for living expenses. His father recently died in New York (in December 2010) at the age of 91.
54.Mr Toro Martinez said the only area in Colombia he knows is Cordoba where his uncle lives. It is in this area where he would have reasonably founded security concerns as a result of the murder of his uncle by FARC guerrillas, referred to above. With regard to other areas, for example the capital Bogota, Mr Toro Martinez said he is not familiar with this and has no friends there. Mr Toro Martinez said if he has to return to Colombia, he has no means of support there but might try to operate an internet trading business from there, in part in order to try and maintain his relationship with his wife. However, he said he has not wanted to entertain the possibility of having to return to Colombia and how he would manage his relationship with his wife and his daughter. He said it is not safe for Australians to live in certain regions in Colombia and he doubts his wife would visit him there. He would have to try and maintain contact by phone and email.
55.Mr Toro Martinez, who is aged 58, has a number of health problems. He is being treated for glaucoma and high cholesterol and has been diagnosed with prostate cancer. The Urology Registrar at the Prince of Wales Hospital, Dr Richard Sadie, is monitoring and treating Mr Toro Martinez’s prostate cancer and has provided medical certificates to this effect. Mr Toro Martinez is currently awaiting the results of a biopsy to see if surgical intervention is required. Mr Toro Martinez said there is a private health system in Colombia but it is expensive, as material he provided to the Tribunal confirmed. It appears that the public health system is significantly poorer than that in Australia.
56.With regard to Mr Toro Martinez’s education, I note the Minister acknowledges the efforts Mr Toro Martinez made to improve his education and skills (for example, in information technology) while in prison which he hopes to use in assisting his wife in her business.
57.I am satisfied from the above evidence that for Mr Toro Martinez to be returned to Colombia would cause both him and his wife and daughter in Australia significant hardship. Mr Toro Martinez has few links with Colombia and to re-establish himself there at the age of 58 with health problems requiring ongoing treatment would be difficult. It would also isolate him from his wife and daughter, who would remain in Australia, and with whom he has a close and loving relationship. These other considerations favour Mr Toro Martinez’s visa not being cancelled.
Conclusion
58.Weighing up the relevant ‘primary considerations’, I am satisfied that the risk of Mr Toro Martinez reoffending is extremely low and the threat he poses to the Australian community is absolutely minimal. As stated above, I am satisfied from the evidence that Mr Toro Martinez has undergone significant rehabilitation and his conduct since December 2006 has been exemplary.
59.The second and third primary considerations are not, in my view, of significance in this case. While the fact that he was an adult at the time he began living in Australia favours cancellation of Mr Toro Martinez’s visa, this (second) primary consideration should not be accorded any significant weight. Moreover, as explained above, the third primary consideration, the length of time he was ordinarily resident in Australia before engaging in criminal activity, should be treated as a neutral consideration.
60.With regard to the ‘other considerations’, I accept that Mr Toro Martinez’s return to Colombia would cause significant hardship to both him and his family in Australia. Mr Toro Martinez has few links with Colombia and to re-establish himself there at the age of 58 with health problems requiring ongoing treatment would be difficult.
61.Having had regard to both the primary and other considerations, my overall conclusion, with particular regard to the extremely low risk posed by Mr Toro Martinez to the Australian community, and the other considerations, is that the discretion in s 501(2) of the Act should be exercised in Mr Toro Martinez’s favour and that his visa should not be cancelled.
Decision
62.The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Act should be exercised in Mr Toro Martinez’s favour so that his visa is not cancelled.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: .........[sgd].....................................................................
AssociateDates of Hearing 12 July 2011
Date of Decision 28 July 2011
Counsel for the Applicant J A C Potts
Solicitor for the Respondent A Linacre, Clayton Utz
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