Michael Heron and Minister for Immigration and Citizenship

[2013] AATA 298

[2013] AATA  298

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1021
Re	Michael Heron
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	SM P W Taylor SC
Date	13 May 2013
Place	Sydney

The decision under review is affirmed.

.....................[sgd]...................................................

SM P W Taylor SC

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa  – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated –impact of the cancellation – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975: s 43(1)

Migration Act 1958: ss 499, 501(2), 501(6), 501G

CASES

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SECONDARY MATERIALS

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REASONS FOR DECISION

SM P W Taylor SC

1. On 27 October 1996 Mr Heron stabbed a man with a knife, in the culmination of drunken hotel fight.  Mr Heron started the fight in reaction to a racially nuanced insult the other man made at the end of a game of pool.  One of Mr Heron’s friends twice interposed himself to separate the combatants, but Mr Heron, and to some extent the other man, persisted in carrying on with the fight.  The knife wound penetrated the victim’s lungs and caused his death.  Mr Heron surrendered himself, and was taken into custody, on 2 November 1996. He has been in continuous custody since that date.

2. On 9 July 1998, after a trial in which he put in issue not only the stabbing, but also defences of provocation, and a drunken lack of intention, a jury found Mr Heron guilty of murder for the October 1996 stabbing. On 23 September 1998 Mr Heron was sentenced to a minimum term of 14 years, with an additional term of four years, commencing from 2 November 1996.  This sentence was based on the assumption that the jury found Mr Heron had stabbed the victim with the intention of inflicting grievous bodily harm, rather than with an intention to kill.  That sentencing basis was somewhat favourable to Mr Heron, but for a long time, including in a subsequent appeal to the New South Wales Court of Appeal (in August 2000) and an application for special leave to appeal to the High Court of Australia (in April 2003) Mr Heron denied the stabbing and denied even having a knife during the hotel fight.  In the course of the present hearing, however, Mr Heron conceded having used a knife, and that he stabbed the man in the manner the sentencing judge had described.

3. The effect of Mr Heron’s September 1998 sentence was that his possible dates of release from custody were not before 1 November 2010, and not after 1 November 2014.  He has in fact remained in prison and he has committed further offences.  One of those involved a retributive assault on a notoriously violent fellow inmate in 2002.  Another also involved an assault on a fellow inmate in October 2011.  Mr Heron described it as pre-emptive assault in response to threats made against him by the inmate or his associates.  As a result of the 2002 assault Mr Heron was convicted in 2004 and sentenced to an additional 9 month custodial term which expired on 31 July 2011.  As a result of the October 2011 assault Mr Heron was convicted in May 2012, and sentenced to an additional 12 month custodial term. 

4. The practical result of Mr Heron’s various convictions is that he has been in custody for the whole period since 2 November 1996.  His earliest possible release date is 10 May 2013, but he has not been recommended for parole.  It appears likely that he will remain in custody until his total 18 year sentence expires on 1 November 2014.

   THE DECISION TO CANCEL MR HERON’S VISA

5. Mr Heron is a New Zealand citizen. Until the decision that is the subject of the present proceedings he held a visa entitling him to reside indefinitely in Australia. But Mr has a “substantial criminal record” and therefore does not pass the character test in s 501(6) of the Migration Act 1958. He has a “substantial criminal record” at least because of his 1998 sentence, and also because of some of his other convictions and sentences, particularly the May 2012 sentence of an additional fixed term of 12 months imprisonment.

6. Because Mr Heron does not pass the character test the Minister has the power, under s 501(2) of the Migration Act 1958, to cancel Mr Heron’s visa. Such a decision was under active consideration from some time before 10 December 2008. The consideration involved Mr Heron being given various notices, to which he responded by providing his own submissions and supportive representations from members of his family. Ultimately, on 18 April 2011, the Minister’s delegate made a decision to cancel Mr Heron’s visa.

7. The Minister was obliged to give Mr Heron written notice of the visa cancellation decision in a form that complied with the requirements of s 501G of the Migration Act 1958. There was some irregularity in notice being given. Mr Heron was not correctly notified of the April 2011 decision, and of his entitlement to make an application for it to be reviewed, until about 19 February 2013. That delay did not affect the cancellation decision itself, but it did have the practical effect of entitling Mr Heron to apply, by an application he made on 7 March 2013, to have the Tribunal review the visa cancellation decision of April 2011.

   MINISTERIAL DIRECTION NO 55.

8. Visa cancellation decisions made by a ministerial delegate, and decisions made by the Tribunal on applications to review visa cancellation decisions, must comply with any Ministerial Direction made under s 499 of the Migration Act 1958. At the time of the 18 April 2011 decision the applicable direction was Direction [41]. On 28 July 2012 the Minister gave the currently applicable direction - Direction no 55. That direction commenced on 1 September 2012, and prospectively revoked Direction [41]. It follows that the Tribunal’s review function, in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, requires compliance with Direction no 55.

9. Direction no 55 sets out four primary considerations to be taken into account in decisions to cancel a person’s visa.  Those primary considerations are

   (a)the best interests of minor children in Australia

   (b)whether Australia has non-refoulement obligations in relation to the person

   (c)the strength, duration and nature of the person’s ties to Australia

   (d)the protection of the Australian community from criminal or other serious conduct.

   MINOR CHILDREN AND REFOULEMENT OBLIGATIONS

10. These two categories of the primary consideration mandated by Direction no 55 have no real significance to Mr Heron’s circumstances.  He is a New Zealand citizen and, if the visa cancellation decision is not set aside, he will return to New Zealand.  There is no suggestion that such a return will involve circumstances that would enliven any Australian non-refoulement obligations. 

11. Similarly Mr Heron has only one child, an 18 year old son.  He has no minor children.  There is no evidence that he has any significant relationship, with any other person’s minor children, and certainly none that would be material to consider as a primary consideration.

    MR HERON’S AUSTRALIAN TIES - HIS PERSONAL EXPERIENCE

12. Mr Heron was born in Western Samoa in 1972, but he and his parents went to live in New Zealand in about 1973.  Mr Heron’s father died in about 1976.  His mother remarried and had two more children, another son in 1976 and a daughter in 1977. 

13. By some time around 1981 Mrs Heron’s second husband had left New Zealand and come to live in Australia.  In November 1984 she came to Australia with the children, in the hope of effecting a reconciliation with her husband.  That hope was disappointed.  By about April 1985 Mrs Heron and her husband had finally separated. 

14. The three children lived with Mrs Heron after she separated from her second husband.  But Mr Heron, who was then aged 13, was proving difficult.  He fell into bad company and committed offences that brought him to the attention of the authorities.  Mrs Heron was aware of her son’s difficulties but felt powerless to control him.   By mid 1986 she had decided to send Mr Heron back to Samoa, to live with his uncle.  Mrs Heron thought, and hoped, that this experience would provide him with the discipline, structure and support that would get him back on the right track.

15. Mr Heron recalls the period that he spent in Samoa, between late July 1986 and April 1993 as very unhappy. He described his uncle as a violent man who assaulted him.  He has no desire to return to Samoa.

16. After his return to Australia in early April 1993 at the age of 21, Mr Heron initially lived with his mother and her new partner.  But, after some kind of family disagreement he left home.  Initially, during 1994, he had some work as a carpenter.  A probation and parole service immigration report dated 27 November 2008 attributes to Mr Heron a statement that when he returned to Australia, he wanted to make “quick money”.  It appears that he started associating with an adverse peer group and began engaging in criminal activity.  It is perhaps consistent with that motivation that in 1995 and 1996, after his release from prison in July 1995, he worked as a barman at a well known adult entertainment establishment in Kings Cross.   

17. Mr Heron’s activities after his return to Australia included convictions for fare avoidance (April 1994), possession of prohibited drugs (May 1994), assault (an April 1995 conviction for events in April 1994), stealing, assault with intent to rob and resisting a police officer in the execution of his duty (November 1994), assaulting police (May 1995), assault occasioning actual bodily harm (two convictions in May 1995 for events in June 1994) and offensive language (April 1996).  Some of these convictions resulted in his imprisonment - from November 1994 until July 1995.

18. This review of Mr Heron’s personal circumstances reveals that he spent the vast majority of his early life in either New Zealand or Samoa.  Conversely, most of the time that he has been in Australia has been spent in jail.  The only periods in which Mr Heron  has lived in Australia, otherwise than as an incarcerated prisoner, have been from

    (a)late November 1984 until late July 1986 (when he was between 12 and 14 years of age)

    (b)April 1993 until November 1994 (when he was aged between 20 and 22)

    (c)July 1995 until early November 1996 (when he was aged between 23 and 24).

    And even these short periods during which he has lived as an ordinary Australian resident have been characterised by criminal conduct of various kinds.

19. Mr Heron’s personal experiences in Australia provide no substantial considerations in favour of setting aside the April 2011 visa cancellation decision.

    MR HERON’S FAMILY TIES IN AUSTRALIA

20. Mr Heron’s family ties in Australia are significant.  His mother is in her early 60’s and is an enrolled nurse who works in the aged care industry. She has lived here, with her  partner, for over 25 years.  Mrs Heron’s two other children, and nine grandchildren, live in Sydney.  She has two step grandchildren, and a younger sister, who still live in New Zealand.  Mrs Heron occasionally returns to New Zealand for visits, but she has neither the desire nor the intention of returning there permanently, irrespective of the outcome of the present proceedings. 

21. Mr Heron lived with his mother in New Zealand until he was 12 years old.  After they came to Australia he continued to live with her, except for the period when she returned to New Zealand in early 1985, and the seven years he spent in Samoa.  The description I have already given of Mr Heron’s activities in Australia prior to his murder conviction in 1998 suggests that he was seriously delinquent, to put it at its lowest, and the probability is that his behaviour placed enormous stress on Mrs Heron, and the other members of the family.  Nevertheless, Mrs Heron’s decision to send her son to Samoa, in the hope that it would get him back on the rails, bespeaks great maternal concern.

22. Mrs Heron was present throughout the hearing of Mr Heron’s review application.  She gave evidence attesting to her commitment to her son, and willingness to support him, within her available means.  She acknowledged both the seriousness of his past conduct, and the difficulties he would face in adjusting to ordinary community life, after such a troubled past and a long period of incarceration.  But she thought he had grown up a lot and had changed for the better.  She believed that, with the support of his immediate family members, Mr Heron had a far better chance of successful rehabilitation in Australia, than if he returned to New Zealand. 

23. A decision to affirm the visa cancellation decision, Mr Heron’s consequential return to New Zealand and likely permanent separation from the rest of his immediate family would be heartbreaking for Mrs Heron.  She would not be in a position either to provide her son with, or to receive from him, the ordinary intimacy of family life.  She would not be able to provide him with the practical assistance she could if he remained in Australia, and was living near her.  She would not be able to visit him regularly.  Such visits as she might be able to make would involve costs that, in the prudent management of her limited financial resources, could be put to better, or at least preferable, use.  Mrs Heron’s dignified presence at the hearing, her measured evidence and the affectionate and respectful way Mr Heron spoke of her, attest to a loving, insightful and perseverant mother who is more than willing to do what she can in assisting Mr Heron establish himself in the Australian community.

24. Mr Heron’s younger brother has a responsible job but, with a wife and five young children, both his financial means and his available time are subject to inevitable practical limits.  Furthermore, the real extent of the bond between Mr Heron and his younger brother has to be assessed against the background that the younger brother was only about 10 when Mr Heron was sent back to Samoa in 1986.  And although he was about 17 when Mr Heron returned to Australia in 1993, and 20 years old at the time of the 1996 stabbing, that period was tainted by the difficulties relating to Mr Heron’s criminal offences and it is doubtful that it involved an effective adult relationship between them.

25. Nevertheless, Mr Heron’s younger brother has been his principal supporter throughout the period he has been in custody.  He has visited him in prison, originally once or twice a year but somewhat less regularly in more recent years.  He hopes to be able to establish a genuine ordinary brotherly relationship with Mr Heron after his release.  He has provided Mr Heron with some financial assistance whilst he has been in prison.  He expects that on Mr Heron’s release from prison he would be in a position to help with finding employment and to make some financial contribution to support his brother.  Mr Heron’s brother also attended for one day of the review hearing and gave evidence.  He impressed as a genuine and articulate person with both the means and commitment to assist his brother.  He conceded that such financial help as he was able to provide, he could also extend to Mr Heron if he returned to New Zealand.  But he also said, and I think with justification, that his assistance to his brother would be more immediate and effective if Mr Heron was able to remain in Australia.

26. Mr Heron’s younger sister also has a responsible job and a family of four children, three of whom are quite young.  Ms Heron has not visited her brother in prison since about 2003.  But this was because, and I think understandably, she found the prison environment overwhelming.  Like her mother, Ms Heron was present throughout the review hearing, and gave evidence.  She spoke warmly, and in a thoughtful manner, about her brother.  She did not underestimate the difficulties he would face in returning to the community.  Nor was she under the naïve impression that the process of rehabilitation and re-engagement with the family would be a stress free experience.  She knew there were likely to be problems, possibly significant ones, but she, like her mother and brother, claimed to be committed to the successful re-union of the family.

27. Mr Heron also has a son.  He was born in 1994.  He was only about 2 years old when Mr Heron went into custody in November 1996.  He was cared for initially by Mrs Heron, until he was about 3 years old.  Since then he has been raised in his mother’s family.  He has kept in regular touch with Mr Heron’s mother and siblings.  He has occasionally visited Mr Heron in jail.  He also attended the first day of the Tribunal hearing.  I would infer that he has an affectionate regard for Mr Heron, and would wish to have him as part of his life in Australia.  There was no evidence that Mr Heron had maintained, or wished to foster, any significant relationship with his son’s mother or her family.

28. There are three realities about Mr Heron’s family ties in Australia.  The first reality is that he is not able to demonstrate meaningful and constructive participation in family life during his past periods of residence in the general Australian community.  The second reality is that his mother and siblings appear to be genuinely and deeply committed to assisting him, within the limits of their means, in establishing himself as an ordinary resident and in joining fully in their apparently closely bonded family life.  Mr Heron himself appears to be equally motivated to participate in that family life.  He described himself as having nothing, other than his family, his mother, siblings and son.  The third reality is that the family members’ obvious and genuine motivation to establish their adult relationships is untested by the realities of the difficulties that Mr Heron’s release from prison is likely to involve.  Perhaps their motivation would endure, and their skills and resourcefulness suffice, to meet those challenges adequately.  But it is a long time since they have had any sustained, let alone close, interaction with him, and without the benefit of that kind of relevant past experience, such a happy outcome cannot be taken for granted.  It is, in reality, an uncertain prospect. 

29. The Minister’s final submissions acknowledged, entirely properly, the genuine, and reciprocated, affection and motivations of Mr Heron, Mr Heron’s mother, his siblings and son.  The Minister submitted that the respective impact of Mr Heron’s own, limited period of lawful behaviour in Australia, on the one hand, and the genuine ties with his immediate family, on the other, justified a neutral weighting in the consideration of the primary considerations mandated by Direction no 55.  I agree with that submission, to the extent of concluding that Mr Heron’s ties to the Australian community are not sufficient to provide an operative consideration in favour of setting aside the visa cancellation decision.  It is not necessary, in view of the conclusion I have come to on the question of the risk of Mr Heron re-offending, to reach a definite view as to whether Mr Heron’s comparatively limited direct personal ties to the Australian community (notwithstanding his immediate family connections) could operate as a factor favouring upholding the visa cancellation decision.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

30. As I indicated in paragraph 9 above, the protection of the Australian community is one of the four primary considerations to which exercise of the visa cancellation power must have regard. The scope of that consideration is informed by other provisions in Direction no 55. The Direction sets out the objective of the Migration Act 1958 (“to regulate in the national interest, the coming into, and presence in, Australia of non-citizens”) and the principles required to be regarded as critically important in furthering that objective in connection with visa cancellation decisions. Those principles involve propositions that:

    (a)Australian residence by non-citizens is a privilege Australia has a sovereign right to determine to grant or withhold, and where the privilege is extended it carries with it an expectation of a resident’s behaviour that is both lawful and respectful of Australian institutions

    (b)persons who have committed serious crimes, especially those of a violent or sexual nature, should generally expect to be denied the privilege of Australian residence

    (c)a person’s previous criminal conduct may be so serious that any risk of similar future conduct could be expected to result in denial of the privilege of residence, despite other strong countervailing considerations

    (d)the assessment of what constitutes an unacceptable risk of harm from apprehended similar future offending conduct should take into account the length of time that the person has lived in Australia, particularly where they have lived here from a very young age

    (e)any decision to withhold the privilege of residence should take into account the length of time that the person has made a positive contribution to the Australian community, and the effect that withholding the residence privilege may have on minor children and other members of the person’s immediate family.

1. The ultimate decision to be made in the exercise of the visa cancellation power is an impressionistic judgment as to whether the risk of future harm being caused by a non-citizen’s conduct in Australia is “unacceptable”.  That judgment requires a consideration of the likelihood of future offending conduct, the potential harm that may be involved if the conduct occurs, and the extent to which, if at all, any risk of future harm “should be tolerated by the Australian community”:  see Direction no. 55 paragraph 7(1)(b).

   SERIOUSNESS OF MR HERON’S OFFENDING CONDUCT

2. I briefly described the circumstances of the October 1996 hotel stabbing in paragraph 1 above.  In paragraph 2 I alluded to the fact that Mr Herron had been sentenced on the basis that he stabbed the victim intending to cause him grievous bodily harm, rather than to kill him.  That conduct, as the sentencing judge remarked, characterised the stabbing as comparatively less heinous than a situation of deliberate, pre-mediated murder.  Nevertheless, as the sentencing judge also remarked, stabbing a man in the chest with a knife in the course of a drunken bar brawl was, on any view, a serious criminal offence.  It is an offence that prevailing community standards would strongly denounce.

   RISK OF RE-OFFENDING – CONDUCT BEFORE THE JULY 1998 MURDER CONVICTION

3. I referred in paragraph 17 above to Mr Heron’s various convictions in the period between his return to Australia in April 1994 and the October 1996 hotel stabbing.  Those convictions indicate his then propensity for violence and disregard of lawful authority.  That conclusion is encouraged by the knowledge that, in the much earlier 20 month period after his arrival in Australia as a 12 year old child, Mr Heron accumulated 9 convictions for offences ranging from stealing, and the illegal use of vehicles, to assault and assault occasioning actual bodily harm.  The likely validity of the conclusion is underscored by the circumstances of Mr Heron’s November 1994 convictions for assault and stealing, and by his two May 1995 convictions for assault occasioning actual bodily harm.  The former matter involved Mr Heron getting into a stranger’s car, taking money from the dashboard and demanding the person hand over their wallet.  The assault convictions in May 1995 involved a brutal street brawl at Kings Cross, as a result of which the victim had been admitted to intensive care with serious head and facial injuries.

4. Following an appeal against the 8 month minimum term custodial sentence that had originally been imposed, Mr Heron ultimately received only a 2 year good behaviour bond, subject to parole supervision, in relation to his May 1995 convictions.  That was the result of a compassionate consideration of his personal circumstances by Judge Luland in the District Court of New South Wales.  The judge relied on information contained in a Probation and Parole Service Report and the report of a specialist psychologist, in concluding that Mr Heron had real prospects of rehabilitation, and that his past criminality was significantly attributable to prolonged social disadvantage, alcohol abuse and bad company.  The good behaviour bond to which Mr Heron was subject commenced on July 1995.  He had at that time recently completed a 6 month fixed term sentence for his November 1994 convictions, and had been held in custody in May, June and July 1995 pending the hearing of his appeal against the custodial sentence that had originally been imposed in May 1995.

5. The sequence of events I have just set out reveals that Mr Heron was still subject to his 2 year good behaviour bond at the time of the drunken hotel fight, and the stabbing murder, in October 1996.  That reality is particularly disconcerting against the background of Mr Heron’s several previous convictions for violence, his previous custodial sentence and Judge Luland’s compassionate sentencing in July 1995.  It paints the picture of a young man, admittedly disadvantaged by the difficult circumstances of his troubled adolescence, who was unable or unwilling to take his place in the Australian community as a person who could be relied on to behave in a lawful manner and, in particular, to refrain from serious violence.

   MR HERON’S JAIL EXPERIENCE

6. Mr Heron has been in continuous custody since November 1996.  During that 17 year period he has been held in custody in various correctional centres, and with variable security assessments.  A very abbreviated outline of his custodial history is as follows:

   (a)November 1996 until June 2003: Mr Heron was in custody mainly at the Goulburn Correctional Centre and at the Metropolitan Remand Centre at Long Bay.

   (b)June 2003 to July 2004:  Mr Heron was in custody mainly at the Parklea Correctional Centre, but he also spent time at the Goulburn Correctional Centre.

   (c)July 2004 to May 2005:  Mr Heron was in custody at the Lithgow Correctional Centre.

   (d)May 2005 until September 2009: Mr Heron was in custody at the Goulburn Correctional Centre.  In this period he was placed in the High Risk Management Unit.  (This followed the events to which I refer in paragraph 44 below.) 

   (e)September 2009 until February 2010:  Mr Heron was in custody at the Lithgow Correctional Centre, High Risk Management Unit.

   (f)February to April 2010:  Mr Heron was placed in segregation at the Lithgow Correctional Centre.  Mr Heron says he had been transferred to Lithgow in order to participate in a Violent Offenders Therapeutic Program.  However that proposal appears to have been thwarted when Mr Heron was placed in segregation at Lithgow.  Mr Heron says that this step was taken because of concerns about risks to his safety from the conduct of other inmates, and not because of any misbehaviour on his part. 

   (g)April 2010 to June 2011:  Mr Heron was transferred back from Lithgow Correctional Centre to the main jail at the Goulburn Correctional Centre.  There, for the first time in about 8 years, he was placed in a “two out” cell (that is, one he shared with another inmate).  He found this experience, and the pressures of interaction with the general jail population, extremely stressful.  He complained, and unsuccessfully sought to be housed in his own cell.  Material from a correctional services counsellor suggests that his request was reasonable, and probably should have been acted upon.  But it was not.  Its refusal added to Mr Heron’s stress and anxiety.  The solution that Mr Heron devised for himself was to threaten violence to custodial staff.  This resulted in his being placed on segregation and then being returned, in July 2010, to the High Risk Management Unit at Goulburn Correctional Centre.  As a result of that development, his acceptance for the Violent Offender’s Therapeutic Program was postponed, and made conditional on good behaviour towards correctional officers.  He did not satisfy that condition.  His conduct culminated in an internal charge of intimidation in October 2010.  There were several incidents of threatening and aggressive behaviour.  As a consequence Mr Heron remained in the High Risk Management Unit at Goulburn until he was transferred to Parklea Correctional Centre in June 2011. 

   (h)June 2011 to September 2011:  In June 2011 Mr Heron was transferred to the Parklea Correctional Centre, for the purpose of undertaking the Violent Offenders Therapeutic Program.  However at Parklea he became alarmed by the comments of some other inmates, and apprehended that he would be attacked.  He determined to pre-empt that risk and have himself removed from the program.  He head butted one of the other inmates who was attending the course.  As a result of that incident he was returned to Goulburn Correctional Centre and again placed in the High Risk Management Unit.  Mr Heron explained that in the Unit he had very limited interaction with other inmates.  He had access to an “association” room which he shared with one other prisoner, but he had no physical access to any other inmates.

   MR HERON’S MISCONDUCT IN JAIL

7. In February 1998 whilst he was in custody awaiting sentencing for the stabbing murder, Mr Heron was charged with two further assault offences. These occurred when he became irritated by the conduct of a guard who wanted to carry out a search. Mr Heron’s 1998 explanation of the circumstances was that he “snapped”, pushed the guard and then “got into a punch up” when the guard retaliated. 

8. In sentencing Mr Heron in July 1998 for the stabbing murder the sentencing judge recorded being troubled greatly by the history of Mr Heron’s offences. The judge recorded that Mr Heron had “to use a colloquial expression, a short fuse”.  That fuse became dangerously shortened by excessive consumption of alcohol and other drugs, and had a propensity to detonate in acts of violence towards other people. The sentencing judge regarded the propensities evident in Mr Heron’s past conduct, as representing a continuing threat to other members of the community

9. The summary I set out earlier of the places where Mr Heron has been held in custody since 1996 includes some references to the fact that he has committed further offences during that period.  In fact the record of his “punishment” as a prisoner includes 31 breaches of prison discipline in the period of his incarceration since November 1996.  About 18 of those incidents have involved fighting of one kind or another, and nine others have involved conduct described as “intimidation”. 

10. At a level of generality, Mr Heron’s behaviour record as a prisoner appears significantly adverse to him in the consideration of his application to review the visa cancellation decision of April 2011.  It shows a prolonged period regularly punctuated by instances of violent conduct.  Mr Heron’s partial response to that appearance was to declare his determination to establish himself successfully as a law abiding member of the community on his release.  As evidence of that determination he referred to his efforts at education and rehabilitation whilst in prison, and the support of his family.  Another part of Mr Heron’s response was to emphasise the extraordinary harshness of the prison environment that he has had to endure.  His view, and one which was not really disputed by the Minister, was that actual and threatened violence were almost inevitable aspects of self preservation in the prison environment.  There were gangs in prison.  There were racial, religious and ethnic tensions.  Inmates who appeared sympathetic to the prison authorities were looked upon with hostility.  Inmates who did not willingly lend themselves to assist the predatory, vengeful or criminal activities of elements in the prison population could be influenced to do so, by a range of violent and conspiratorial means. 

11. The force of Mr Heron’s attempted exculpatory explanation for at least some of his conduct in prison is highlighted by the circumstances of his conviction in July 2004 for an assault at the Goulburn Correctional Centre in July 2002.  That conviction, for assault occasioning actual bodily harm, resulted in an additional 9 month custodial sentence, which postponed Mr Heron’s earliest possible release date from November 2010 to July 2011. 

12. The victim of the July 2002 assault was a prisoner who had been serving a sentence for  murder.  He had a notorious reputation for being involved in supplying drugs in jail and being involved in assaults on other inmates.  He was set upon by a number of other inmates in one of the prison exercise yards.  He was severely beaten, and cut or stabbed with a knife.  Mr Heron was one of five inmates who were identified from the many involved in the assault. Those five all ultimately pleaded guilty to charges of assault occasioning actual bodily harm (as a lesser charge to malicious wounding), but the extent of their actual involvement in the assault was not the subject of any evidence. 

13. In his sentencing remarks in 2004 the judge entertained the possibility that the assault was an act of revenge against the prisoner for his own “standover” tactics.  Mr Heron, in the present proceedings confirmed that was the case.  He said the prisoner had been a member of one of the prison gangs and responsible for a good deal of violence, and drug activity, within the prison.  He had  lost his gang support, and other prisoners had taken the opportunity to exact retribution.  Mr Heron denied using a knife in this assault, and said he had only hit the man once or twice.  He said, however, that he had no regrets whatsoever about the incident.  He plainly regarded the assaulted prisoner with a great deal of animosity, because of the prisoner’s own predatory criminality in jail.  That animosity appears likely to have had a sound factual basis.  Of course that basis cannot be accepted as a justification for the assault. But it does tend to identify a reason for Mr Heron to have indulged in violence on that occasion, and it also provides a factual basis for regarding the assault as exclusively attributable to the cauldron of prison tensions.

14. A similarly cathartic eruption of tension may explain Mr Heron’s two convictions in September 2005, for malicious damage to property, and assaulting a correctional services officer.  Those arose out of an incident in May 2005 at the Lithgow Correctional Centre.  Mr Heron had been transferred to Lithgow in July 2004 where he was an inmate in the “Security Threat Group Intervention Program” and was subject to a “Segregated Custody Direction”.  This direction, and his security classification within the “STG” intervention program, meant that Mr Heron had no interaction with other inmates, had very limited privileges and was liable to be repeatedly strip searched whenever he left or re-entered his cell.  Obviously these were onerous and stressful custody conditions.  Mr Heron wanted them to be relaxed.  In May 2005 however, he was informed that the Serious Offenders Review Council had made an adverse recommendation about his custody placement.  He was angry and disappointed by this news.   He grabbed and hit the correctional services officer who told him about the “SORC” recommendation.  He and another prisoner then refused to return to their cells.  They attempted to barricade themselves in a prison day room, by destroying some furniture and moving equipment. Eventually they were forcibly subdued by prison officers.

15. There was another incident, perhaps more accurately described as several incidents, from about mid 2010 to October 2010.  This followed Mr Heron’s return from Lithgow Correctional Centre to Goulburn, and attempts to integrate him into the main prison population.  In paragraph 36(g) above I alluded to the stress this transition imposed on Mr Heron, and to the fact that it resulted in further instances of offending conduct by him, and his return to the High Risk Management Unit at Goulburn.

16. Mr Heron’s conduct in this period up to early 2011 was the subject of a Probation and Parole Service Report to the Department of Immigration.  Mr Heron takes issue with the fairness of parts of this report, at least in two respects.  He says that the author had some antipathy towards him.   He also says that the negative comments in the report do not present any explanation of his sense of grievance and frustration about his unsuccessful attempts to be granted single cell accommodation at the Goulburn Correctional Centre.  The comparative brevity of the February 2011 Probation and Parole Service report probably lends itself to Mr Heron’s perception that, taken on its own, it portrays him in an unduly negative light.  As against that, the Report does also note that since January 2011 Mr Heron had been the sweeper in the High Risk Management Unit and had received excellent work reports.  This acknowledgement contributes to the impression that Mr Heron’s behaviour in the period from mid to late 2010 was in some respects aberrant and reactive to the particular stresses of his changed situation. 

17. If the events of 2010 had been the last instances of Mr Heron’s adverse conduct it may have been appropriate to take them into account as extraordinary and partly explicable by the particular circumstances.  Even so, it is significant to note that in May 2011 (shortly before his earliest possible release date – see paragraph 41 above) the NSW Probation and Parole Service recommended that he be refused release on parole.  The report noted that Mr Heron had been assessed as having a high risk of reoffending (because of his history of alcohol abuse, and his propensities for impulsivity, anger and violence).  The report noted that Mr Heron had generally been compliant within the controlled environment of the High Risk Management units, but had been unable to cope when released into the mainstream prison population. He still tended to demonstrate impulsive aggressive and threatening behaviour.

18. But the events of 2010 were not the last examples either of Mr Heron’s inability to cope, or his inclination to resort to violence as a solution to short term problems.  By June 2011 Mr Heron had been transferred again to the Parklea Correctional Centre, for the purpose of undertaking the Violent Offenders Therapeutic Program.  There he head butted another prisoner, apparently in a successful attempt to be removed from the program, because of threats of violence that he perceived had been made by other inmates.  (I referred to this episode in paragraph 36(h) above.)  A subsequent discharge report prepared in July 2011 by a specialist psychologist involved in the Violent Offenders Therapeutic Program reported that Mr Heron had reported an extreme difficulty in moving from the High Risk Management Unit to the program environment.  The report recommended that he should spend a period of time in the general prison environment before attempting to return to the program.  The report further recommended that he engage in further preparatory work “within a group based setting” to help him manage his emotions in a more effective way, and develop skills of interaction, including the skills to manage negative or potentially provocative situations.

19. There were two other instances of violence in which Mr Heron was involved in September and October 2011.  The September incident involved a fight with an inmate, for which he was punished with seven days confinement to his cell.  The October 2011 incident resulted in Mr Heron’s subsequent conviction in May 2012 of a further charge of assault occasioning actual bodily harm, and an additional custodial sentence of 12 months ending on 10 May 2013.  In that incident he attacked an inmate within the High Risk Management Unit at the Goulburn Correctional Centre.  Centre Records suggest that there were reports of hostility directed at Mr Heron from other inmates of middle eastern or Islamic associations, that the victim was of that kind, and that the two inmates should not have been allowed to interact.  Mr Heron’s explanation for the assault was that it was his way of demonstrating to the other inmates that he was best left alone and not made a target for their threats.  Again he perceived his conduct as a legitimate response to the hostility of the jail environment.

20. In January 2013 the same Probation and Parole Officer about whose February 2011 report Mr Heron had complained, reinterviewed him for the purpose of providing a “Pre-Release Report” in view of the expiry of his then current minimum custody period on 10 May 2013.  In a subsequent report in February 2013 the Officer noted that Mr Heron had initially apologised for an abusive letter he had written about her in September 2011.  But later in the interview, in response to an enquiry about where his relatives were living in New Zealand, and then in trying to explain why Mr Heron had been refused parole in 2011, Mr Heron had become extremely aggressive and abusive.  The February 2013 Report did not recommend his release on parole.  The District Manager supported that recommendation and observed that Mr Heron was not suitable to be released into the general community and that it was difficult to envisage the situation would change before his sentence expired, if he remained in the High Risk Management Unit.  Conversely his abusive and assaultive behaviour suggested that it would not be possible to transfer him into the general prison population.

    MR HERON’S EFFORTS AT REHABILITATION AND EDUCATION IN JAIL

1. Mr Heron’s extended period of incarceration is not without some significant personal achievements.  He has undertaken numerous courses across a range of subject matters, from literacy to word processing and information technology, between 1998 and 2004.  In 2006, 2007 and 2008 he was awarded various certificates of achievement for successful and consistent participation in adult education programs. Mr Heron proudly claimed that he had progressed from being basically illiterate at the commencement of his incarceration in 1996, to being a comparatively successful and highly motivated student.  Certainly the various letters he submitted to the Minister, and to the Tribunal, in connection with the visa cancellation decision, and his participation in the oral hearing of the present application, evidence his good written and verbal communication skills and, in that respect he is to be commended.

2. In addition to participation in purely educative programs Mr Heron has also undertaken various rehabilitative courses.  These include repeated courses in anger management (in 2001 and 2009) a course on alcohol and drugs harm minimisation, and an alcohol and drug education program.  Again his participation in these courses and programs counts in his favour.  But the question remains whether those courses, and his participation in them can, with the other available evidence, lead to a conclusion that there is a low or acceptable risk of Mr Heron re-offending if he remains resident in the Australian community.

   EXPERT ASSESSMENT OF MR HERON’S RISK OF RE-OFFENDING

3. The sentencing judge’s remarks in July 1998, and the various Probation and Parole service reports since, have commented on the risk of Mr Heron re-offending.  A consistent theme in those comments is his impulsiveness and inability to control his anger.  As I have indicated, the Probation and Parole Service Report of February 2013 indicated that he had been assessed (in July 2010) as having a high risk of re-offending.

4. For the purpose of the present proceedings Dr Banks, a consultant clinical psychologist interviewed Mr Heron, and made both an actuarial and clinical assessment of his risk of re-offending.  Dr Banks made the actuarial assessment by asking Mr Heron to undertake an assessment known as the Level of Service Inventory – Revised (the “LSI-R”).  This assessment tool involves a survey of various personal attributes of an offender, including (but not limited to) their criminal history, education, family relationships and history of substance abuse.  According to this assessment by Dr Banks, Mr Heron had an LSI_R score that placed him a category of offenders with a moderate risk of re-offending.  However, Dr Banks thought that Mr Heron’s LSI-R score might in fact underestimate his risk of re-offending, because of his history of prison conduct.  That history appeared to display continued antisocial behaviour and features of aggressive and paranoid misinterpretations of other people’s conduct.  Dr Banks also administered two other recognised assessment tools to Mr Heron.  These were questionnaire based enquiries that required Mr Heron’s attentive and honest co-operation.  Dr Banks remarked that Mr Heron appeared to have made considerable effort to respond accurately and appropriately to these questionnaires.

5. Based on the totality of the assessment tools that he had administered, his clinical observations during the course of interviewing Mr Heron, and Mr Heron’s past criminal record, Dr Banks considered that Mr Heron had a moderate risk of re-offending.  That risk can be expressed in terms of a percentage, based on Mr Heron’s LSI-R score.  But Dr Banks preferred to eschew any illusion of precision, because he accepted that the assessment tool still required a considerable element of clinical and experiential judgment for its proper interpretation.  Dr Bank’s ultimate conclusion was that Mr Heron’s past institutional conduct suggested the probability that Mr Heron would be involved in further incidents of violent or aggressive behaviour. These incidents had been frequently evident in his past behaviour.  Mr Heron had not undertaken a thorough therapeutic program for violent offenders and although the various anger management courses he had undertaken were to his credit, Dr Banks remained very sceptical that Mr Heron really did have the communication and personal management skills that would permit him to function lawfully in the general community.  That prospect was one that Dr Banks could entertain as a possibility – given Mr Heron’s motivation, rehabilitative efforts and the support and good will of his family.  But it was not a result that Dr Banks was at all confident would be manifested in reality.  Dr Banks thought that the reality of Mr Heron’s prison conduct pointed to the likelihood that he would find his transition to life in the general community particularly stressful and that it would severely test his coping abilities.  Dr Banks noted that Mr Heron would have the proffered support of his mother and siblings.  But he also, and I think fairly, noted that the proffered support had not (at least since November 1996) really been tested in way that permitted a confident conclusion that there was only a minimal risk of Mr Heron re-offending.

   CONCLUSION ON THE RISK OF RE-OFFENDING

6. Mr Heron has a very long history of violent assaults.  They appear to have sometimes, but not always, been involved with alcohol abuse.  Mr Heron has made some commendable efforts to curb his offending behaviour.  But at least some of his violent conduct during his time in custody has been deliberate and serious.  Mr Heron protests that little adverse to him can properly be drawn from the consideration of his various custodial offences – because of the hostility to which he has been exposed in jail and the necessity, as he perceives it, never to display any indication of vulnerability and always to display both a capacity and a willingness to use violence should the need arise.

7. I have endeavoured to give full weight to Mr Heron’s attempted explanations for his conduct in prison, his professed motivation to change, his commitment to rehabilitate himself as a member of his family, and his efforts at education and rehabilitation whilst in prison.  Nevertheless, a consistent aspect of Mr Heron’s reported conduct, from at least 1996 until his January 2013 interview with the Probation and Parole Service officer, is a capacity for aggression and a tendency to impulsiveness and violence.  Even if much of that behaviour since 1996 is inextricably linked to the most stressful aspects of the prison environment in which he has been immersed, the reality remains that his history exhibits the characteristics to which I have just referred.  Both past and current informed assessments have pointed to the real risk of his re-offending.  And any transition from prison life back into the community appears very likely to expose Mr Heron to stresses that will considerably test his abilities to function effectively in the community.  There is good reason to apprehend that in such a test there is a real prospect of Mr Heron losing control and re-offending. 

8. For these reasons I conclude that there is a very real, and unacceptable, risk that Mr Heron might re-offend if he was allowed to remain within the Australian community.  It is obvious from the nature of Mr Heron’s past offences that very significant harm, even death, could be the consequence of any re-offending conduct in which he might engage.

   THE IMPACT OF VISA CANCELLATION

9. As I have already indicated, Mr Heron’s mother, two siblings and his son all live in Sydney.  All will likely continue to do so, whatever the outcome of the present proceedings.  Their opportunities to visit Mr Heron if he returns to New Zealand will be limited by their financial means.  In reality they are unlikely to be able to visit him often.  They will certainly not be able to provide him with the direct physical assistance and warmth that characterise close, supportive and cordial family relationships.  That will likely be a great disappointment to the other family members, and to Mr Heron himself.  But in my assessment it is difficult to find any evidence that Mr Heron has at any time genuinely respected the privilege of his Australian residence or indeed positively contributed to the Australian community.  And, in practical reality, his past real involvement even with his own immediate family has been of a limited kind.  Consequently the sense of loss and disappointment that will likely result from the visa cancellation decision is a loss that Mr Heron and his family must bear, when weighed against the  reality of the risk of Mr Heron re-offending.

10. Mr Heron will of course face additional difficulties in any transition to ordinary living in New Zealand.  He appears not to have lived there to any significant extent since he was about 12 years old.  Attempting to re-establish himself in New Zealand will be a confronting task.  As against that, he is only in his early 40’s.  He is in good health, has a competent level of literacy, and will potentially have available to him the ordinary welfare support systems potentially available to any New Zealand citizen.  He should not have any particular and significant additional difficulty to overcome in establishing his life in New Zealand, rather than in the Australian community.  Although he will not have any immediate family members in New Zealand, he can expect them to provide him with encouragement, and some modest level of financial support in times of need.  In addition he will still have some relatives available to him in New Zealand, including his step father.  He is not, therefore, entirely without the prospection of some family connections in New Zealand, should he chose to seek to cultivate them.

11. I do not consider that any of the other (that is the “non-primary”) considerations potentially relevant to the visa cancellation decision, whether considered individually or collectively, provide a good reason to regard the real risk of Mr Heron’s future re-offending conduct as acceptable for the purpose of the proper exercise of the visa cancellation power, consistent with the principles and considerations set out in Direction no 55.

    DECISION

12. For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of SM P W Taylor

.........................[sgd]...............................................

Associate

Dated  13 May 2013

Date(s) of hearing	2 and 3 May 2013
Applicant	In person
Solicitors for the Respondent	Ms Cumming, Clayton Utz