McIlvaney and Minister for Immigration and Multicultural Affairs

Case •

[2000] AATA 416

•

29 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 416

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/229

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      PAUL ALEXANDER McILVANEY         
  Applicant

And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date29 May 2000

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant and that he be allowed to remain in Australia.          

(Sgd)          DP Breen
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – Visa cancellation – expectations of the Australian community – best interests of the child – ties to Australia – interaction with Section 200 of the Migration Act 1958.
Migration Act 1958 s 501
Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306

REASONS FOR DECISION

29 May 2000 Deputy President DP Breen, Presidential Member                  

  1. This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 8 February 2000 to cancel the applicant's Transitional (Permanent) Visa under Section 501 of the Migration Act 1958.

  2. This case was heard before me on 15 and 16 May 2000.  The applicant, Paul Alexander McIlvaney, represented himself.  Mr D Kirchhubel of the Australian Government Solicitor's Office represented the respondent Minister.

  3. Oral evidence was taken from the applicant;  Mrs Samantha McIlvaney, the applicant's wife;  Mr John Thain, the applicant's stepbrother;  Mrs Christine Thain, the applicant's stepmother, and Mrs Anne McPhail-Thain, the applicant's mother.  Evidence was also given by Mr Michael Moore, a family friend and Mr Kevin McDonald, a Correctional Services Officer.

  4. The following documents were taken into evidence.

  • Exhibit 1            "G" Documents

  • Exhibit 2            Dossier of documents prepared by the applicant

  • Exhibit 3            Reference of Robert Ayers dated 6.5.00

  • Exhibit 4            Statement of Michael John Moore dated 9.3.00

  • Exhibit 5            Affidavit of Melanie Peta Parkinson and attachments

  • Exhibit 6            Affidavit of William Orril Rodgers and attachments

  • Exhibit 7            Memorandum of Lizabeth Ann Penery dated 3.12.99

  • Exhibit 8            Statement of Samantha Jane McIlvaney

  • Exhibit 9            Statement of John McIlvaney

  • Exhibit 10A       Statement of Christine Susan Thain dated 11.4.00

  • Exhibit 10B       Statement of Christine Susan Thain dated 22.4.00

  • Exhibit 11          Letter of Ann Thain

  • Exhibit 12          Bundle of letters in support of the applicant

  1. Mr McIlvaney is 36 years of age and he arrived in Australia from Scotland with his family at the age of 9 years.  He has resided in Australia since that time.  The applicant's criminal history involves a few theft offences between 1980 and 1984 and then an attempted theft in 1992.  No convictions were recorded in respect of these matters.  He was convicted of a change of resisting Police in 1993.  The sentence for that offence was suspended.  The offence which forms the basis of the cancellation of his visa occurred in 1996.  He was convicted on one charge of indecent assault with circumstances of aggravation for which he was sentenced to 7 years and one charge of rape for which he was sentenced to 8 years imprisonment, to be served concurrently.  The offences were committed against his sister-in-law.

  2. The applicant has been married to Samantha McIlvaney since 1986 and they have two children.  Shanelle is 10 years old and Sarah is 7 years old.  Both are Australian citizens.  The applicant's mother, step-parents, sister and 3 brothers live in Australia, as do his aunts, uncles and cousins.  He has no family living in Scotland.

  3. Mr McIlvaney's visa was cancelled under Section 501 of the Migration Act 1958. Section 501 is in the following terms:

    "(2)     The Minister may cancel a visa that has been granted to a person if:

    (a)the Minister reasonably suspects that the person does not pass the character test; and

    (b)the person does not satisfy the Minister that the person passes the character test.

    …..

    (6)       For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or

    (b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; 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; or

    (d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

    (i)engage in criminal conduct in Australia; or

    (ii)harass, molest, intimidate or stalk another person in Australia; or

    (iii)vilify a segment of the Australian community; or

    (iv)incite discord in the Australian community or in a segment of that community; or

    (v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

    Otherwise, the person passes the character test.

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

    (e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution."

  1. Mr McIlvaney's two convictions in 1996, which attracted sentences of 7 and 8 years imprisonment respectively, mean that he has a substantial criminal record and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.

  2. There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.

  3. Considering, firstly, the protection of the Australian community, it is acknowledged that the crime the applicant was convicted of is a serious crime.  It involved a breach of trust by a family member and the violation of a woman who was unable to defend herself.  It is a crime which has caused significant trauma to the victim and to both families involved.

  4. The respondent concedes that the risk of recidivism is low.  Whilst in prison the applicant has completed programmes in Cognitive Skills, Alternatives to Violence and Substance Abuse Education.  He has also completed the Preparation for Intervention Programme successfully and was on the list for the Sex Offenders Intervention Programme.  However, due to the long waiting lists he has not actually completed that course.  Mr McIlvaney has also completed a number of educational courses including computing, first aid and occupational health and safety.  The applicant also holds a C-class truck license and has experience in bakery and various labouring jobs.  As such, he has good prospects of employment in Australia and has been offered work by a former employer.  The applicant also has full support from his family and a large network of friends.  All these factors point towards a successful rehabilitation and, as such, a low risk of recidivism.  Where the risk of recidivism is low, the risk to the protection of the Australian community must also be regarded as low.

  5. The question of general deterrence is not of great weight in this matter. This is not a case which has been widely publicised and there are no co-offenders to deter. Whilst convictions and terms of imprisonment from criminal courts are made known to the general community and may deter others from committing offences, visa cancellations and deportations are not publicised to the community and seem particularly not to be brought to the attention of incoming migrants. These are a class of people who should clearly be made aware of their liability under Section 200 and Section 501 of the Migration Act if this consideration is to be given significant weight as a matter of general application.

  6. The second primary consideration is the expectations of the Australian community.  These expectations are that a non-citizen will obey Australian laws.  Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to cancel the visa.  While this crime falls within the category of abhorrent, it is not so abhorrent that the Australian community would consider the offence only, to the exclusion of attempts at rehabilitation by the applicant himself and the question of hardship which would be suffered by the applicant, his children and his family.  Therefore, in the Tribunal's assessment the expectations of the Australian community do not preclude the continuance of this visa.

  7. The final primary consideration is enlivened in this case, as Mr McIlvaney has two young children who are Australian citizens.  These two girls have lived with their father until his arrest in 1996 and have a close and loving relationship with him.  This was clear from all the family members who gave evidence.  If the applicant's visa is cancelled it is not definite that the children will relocate to the United Kingdom with him.  If they do not, they will lose contact with their father, something which will be quite devastating to these children who are old enough to feel the loss but not quite old enough to be in a position to understand it if it occurred.  If they do move to the United Kingdom, they will lose contact with their extended family in Australia;  they would have to change schools and make new friends.  Whilst the culture in the United Kingdom is similar to that in Australia, the relocation so far away from family and friends would still be fairly traumatic for them, particularly as they have spent their entire lives in Australia.  As such, the cancellation of the applicant's visa would not be in the best interests of either of these children.

  8. On balance, the primary considerations give preference to the discretion being exercised in the applicant's favour.

  9. There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration.  The pertinent secondary considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;

(b)a genuine marriage to, or de facto or inter-dependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen;

(c)family composition of the non-citizen's family, both in Australian and overseas; and

(d)evidence of rehabilitation and recent good conduct.

  1. As stated in evidence, the applicant's family resides in Australia and he has only one brother in the United Kingdom. The applicant has no contact with that brother. Having resided in Australia since the age of 9 years, his ties to Australia are very strong. Under Section 200 of the Migration Act a person is not liable to deportation if they do not commit a deportable offence within the first 10 years of residence. This shows that the Parliament set a definitive cut-off period, outside of which a person's ties to Australia would be deemed to be too strong and too entrenched to justify deportation. No such limitation exists under Section 501.

  2. Whilst the Tribunal must pay heed to the Federal Court decision of Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306, and accepts that the sections provide two different sources of power to the Minister, the legislation must be read in its entirety. In assessing a person's ties to Australia, if under Section 200, 10 years residence is considered significant, then the 26 years this applicant has resided in Australia must be given a great deal of weight. Further, the applicant is in a genuine marriage with an Australian citizen and has been so for the past 14 years. He has an extensive network of friends and family in Australia. As such, his ties to the Australian community are extremely strong. The breaking of these ties and the forced relocation to a country with which he has no real ties would cause extreme hardship.

  3. Mrs McIlvaney will suffer severe hardship if the applicant's visa is cancelled.  If she stays in Australia she will lose her husband and have to bring her children up alone.  If she relocates to the United Kingdom she will lose contact with her family and friends.  She has no support network in that country and since her husband has no accommodation and minimal job prospects there, such relocation would be very hard on her.  Mr McIlvaney's family and friends would also suffer the loss of their relationship with the applicant, a relationship, which, from the evidence provided to the Tribunal, is one they value highly.  There is also clear evidence that the applicant is seeking to rehabilitate himself and is focusing on what he can put back into the community in the future.

  4. The primary and secondary considerations are both balanced in the applicant's favour. For these reasons, the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant and that he be allowed to remain in Australia.

    I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:         Emma Oettinger
      Associate

    Date/s of Hearing  15.5.00, 16.5.00
    Date of Decision  29.5.00
    Rep. for the Applicant              The applicant appeared in person

    Solicitor for the Respondent    Mr D Kirchhubel, Australian Government Solicitor's Office

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Cases Citing This Decision

1

Cockrell and Minister for Immigration and Citizenship [2007] AATA 67