Milne and Minister for Immigration and Citizenship
[2009] AATA 360
•18 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 360
ADMINISTRATIVE APPEALS TRIBUNAL No. 2009/1222
GENERAL ADMINISTRATIVE DIVISION Re WILLIAM THOMAS DUNBAR MILNE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member Date:18 May 2009
Place:Melbourne
Decision: The Tribunal affirms the decision under review. (sgd) G.D. Friedman
Senior Member
MIGRATION – transitional permanent visa - cancellation - conviction for sexual offences - character test - exercise of discretion
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Sentencing Act 1991 (Vic.)
Sexual Offenders Registration Act 2004 (Vic.)
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
18 May 2009 G.D. Friedman, Senior Member
1. William Milne is a citizen of the United Kingdom who has been in Australia since 1970. His Class BF Transitional (Permanent) visa was cancelled on 11 March 2009 because a delegate of the respondent was not satisfied that Mr Milne passes the character test due to his criminal record in Australia. The delegate decided to exercise the discretion to cancel the visa.
LEGISLATIVE BACKGROUND
2. Under s 501(2) of the Migration Act 1958 the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides:
(a)the person has a substantial criminal record (as defined by subsection (7))…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
3. Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
4. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction – Visa Refusal and Cancellation under section 501 – No. 21 (Direction 21). The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
5. Paragraph 2.2 of Direction 21 provides that:
…a decision‑maker should have regard to three primary considerations and a number of other considerations… Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 of Direction 21 sets out the primary considerations:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 of Direction 21 explains:
2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 of Direction 21 states:
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
6. Examples of the matters that the Government views as serious offences are set out in paragraph 2.6 of Direction 21. These include sexual assaults, especially sexual assaults involving children (2.6(d)); assault or any other form of violence against persons (2.6(f)); crimes against children (2.6(m)); and any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community (2.6(n)).
7. Paragraph 2.8 of Direction 21 states that when exercising the discretion, decision-makers must take into account any relevant factors provided by the non‑citizen as mitigating factors.
8. Paragraphs 2.10 and 2.11 of Direction 21 refer the decision‑maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – that is, the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
9. Paragraph 2.17 of Direction 21 states that when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally be given less individual weight than that given to the primary considerations. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non‑citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
ISSUES
10. The issues before the Tribunal are:
·Does Mr Milne pass the character test? If not:
·Should the discretion to cancel the visa be exercised? This involves the primary considerations (the protection of the Australian community; the expectations of the Australian community; and the best interests of a child or children who have a parental or other close relationship with Mr Milne); and other considerations.
DOES MR MILNE PASS THE CHARACTER TEST?
11. Mr Milne was born in Scotland, United Kingdom in 1941 and arrived in Australia on 26 February 1970 with his wife and two children. He has lived in Australia since then.
12. On 11 May 2005 in the County Court of Victoria he pleaded guilty to one count of incest, two counts of sexual penetration of a child under the age of 16 years and 16 counts of indecent acts with or in the presence of a child under the age of 16 years. The offences occurred between approximately May 2001 and May 2004, and involved Mr Milne’s granddaughter, her friends and children of family friends, all of whom were aged between seven and eleven years. He was convicted on all charges and was sentenced as follows:
Count 1: two years’ imprisonment
Count 2: nine months’ imprisonment
Count 3: two years’ imprisonment
Count 4: two years’ imprisonment
Count 5: nine months’ imprisonment
Count 6: nine months’ imprisonment
Count 7: three years’ imprisonment
Count 8: four years’ imprisonment
Count 9: eighteen months’ imprisonment
Count 10: nine months’ imprisonment
Count 11: nine months’ imprisonment
Count 12: one years’ imprisonment
Count 13: nine months’ imprisonment
Count 14: eighteen months’ imprisonment
Count 15: eighteen months’ imprisonment
Count 16: nine months’ imprisonment
Count 17: three years’ imprisonment
Count 18: eighteen months’ imprisonment
Count 19: eighteen months’ imprisonment.
13. The Judge ordered one year in respect of each of Counts 4, 7 and 17 to be served cumulatively with the term of imprisonment imposed in respect of Count 8, giving an effective sentence of seven years’ imprisonment with a minimum of five years. The earliest date for release on parole is 1 May 2010.
14. In view of the nature of the offences and the sentences imposed, the Tribunal finds that Mr Milne has a substantial criminal record as defined in s 501(7) of the Act and that he does not pass the character test under s 501(6)(a) of the Act.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
15. Mr Milne stated that he came to Australia at the age of 28 years and worked for Qantas Airways as a loader and equipment supervisor until 1991. From 1995 to 2004 he worked as a warehouse storeman. He said that he has no prior convictions. He explained that he married in 1964 and has two children: a son (the father of one of his victims) and a daughter. At the time of the offences his son resided with him and Mrs Milne and he owned a caravan which he kept in a caravan park at Nagambie, near Shepparton. Mr Milne said that during the period from 2001 to 2004 he and his wife, and occasionally he alone, would spend time at the caravan park, sometimes in the company of his son’s two children: a girl then aged about six to nine years and a son aged about four to seven years.
16. In a written statement dated 21 February 2009 outlining his views about the possibility of returning to the United Kingdom, Mr Milne said that he was suffering from depression and anxiety at the time of the offences, and …things just got out of hand. I know now I should have sought help for my condition at the time but it had gone too far. I did not hurt any of my victims physically. He stated that the charge of sexual penetration was of a minor nature and that there was no medical evidence to prove otherwise, but he was told to plead guilty to all charges and did so, even if he did not understand them. He said that he was heavily sedated at the time. In relation to the circumstances of the offences, Mr Milne told the Department of Immigration and Multicultural and Indigenous Affairs in response to the Notice of intention to consider cancelling a visa under subsection 501(2) of the Migration Act 1958 dated 25 October 2005:
This was a one of (sic) situation as I was suffering from deep depression and anxiety at the time.
17. Mr Milne said that he and his wife applied for Australian citizenship on 12 June 2004 and in July 2004 he received a letter indicating that his application was approved, which he said confirmed that at that time he was considered to be of good character. Ultimately citizenship was not granted to him, although his wife became an Australian citizen in November 2004. He said that since his imprisonment he has learnt a lot about how life should go on, and has changed his way of thinking. He apologised for what has happened.
18. In a written statement received on 14 April 2009 Mr Milne said that he regrets and is very sorry for his behaviour and is ashamed of himself. He also said that he feels remorse for his actions against his victims and their families and for his own family. Mr Milne told the Tribunal that the offending was against his character, and will never happen again. He said that some of the charges arose from allegations that were not true, and were instigated by his former daughter-in-law. He stated that when he is released from gaol he plans to ensure that an adult accompanies him at all times when he leaves his house, mainly because members of the community might wish to provoke or harm him. Under cross-examination Mr Milne agreed that he had pleaded guilty to all charges at the first instance, and that he had been represented by counsel throughout the criminal proceedings.
19. In a written statement received on 8 May 2009 Mrs R Milne said that she and Mr Milne have been married for nearly 45 years, and that the offences committed by Mr Milne were completely out of character. She said that she and Mr Milne have worked through things together as a family. Mrs Milne told the Tribunal that she was devastated when she was informed of the offences, particularly as she and Mr Milne had been close, and she had no indication that the offences had been carried out over a three-year period or that Mr Milne was at risk of committing offences of this nature. She assured the Tribunal that the family will ensure that Mr Milne will not re-offend.
20. In a written statement received on 8 May 2009 Ms D Wheeler (Mr Milne’s daughter), stated that Mr Milne…is not 100 percent innocent but he [is] not 100 percent guilty either. She explained that he has done the wrong thing by offending, but his behaviour is not reflected accurately because some of the charges were not based on the facts. Ms Wheeler said that she has no concerns about the possibility of Mr Milne re-offending, and sees no need to keep him away from children when he is released from gaol. Mr S Taylor, Ms Wheeler’s partner, told the Tribunal that Mr Milne has been a family friend for 10 years and is a loving and caring person whose criminal actions were out of character.
21. On 27 October 2005 the Reporting Officer at HM Prison Ararat told the Department that Mr Milne was prepared to participate in any sexual offender program, but that this had not occurred. The officer assessed Mr Milne as having a moderate risk of re-offending. Mr Milne said that he has not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.
22. Although Mr Milne has no prior convictions, the offences he committed are extremely serious and come within the category of very serious offences as set out in Paragraph 2.6 of the Direction. He has spent four years in prison, and the sentence is indicative of the seriousness of Mr Milne’s conduct. The sentencing Judge declared Mr Milne to be a serious sexual offender under the Sentencing Act 1991 (Vic.) and a registrable offender under the Sexual Offenders Registration Act 2004 (Vic.) and stated:
Through your vile actions, Mr Milne, you have caused so much harm to so many children and so many families, including your own family. As a mature adult you most cruelly betrayed the trust that every adult has towards the children of our community. In particular, you breached that very special trust that every grandfather has towards his grandchildren.
23. On the question of the likelihood that the conduct may be repeated (paragraph 2.10 of the Direction), the Tribunal takes into account that the sentencing Judge noted that a consulting forensic psychiatrist could find no major cognitive deficit or other condition that might have impaired Mr Milne’s judgment or produced sexual disinhibition and inappropriate sexual contact. The psychiatrist was unable to provide any ready explanation for the misconduct, and considered that any depressive disorder occurred after the offending behaviour became known and Mr Milne’s wife had abandoned him. The sentencing Judge concluded:
This court has formed the very clear view on the evidence that that your pattern of offending is paedophilic in nature. It has also formed the clear view, given the pattern of your past offending, that without treatment, at least in the appropriate circumstances, you would [be] likely to further offend against children.
24. Further to these matters are Mr Milne’s comments made in 2005 about the offences being a one-off situation which were made after conviction on 19 counts that occurred over a three-year period, and his comments of 21 February 2009 that he did not cause any physical harm to any of his victims. Although Mr Milne stated that many of the charges arose from events that he said did not occur, the Tribunal is not able to review the essential factual basis of a conviction and the resulting sentence. These are matters for the criminal law and its procedures (Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234). Mr Milne’s comments demonstrate that he has not gained insight into the nature and consequences of his offending. He has not completed a sexual offender program or any meaningful rehabilitation or treatment.
25. The Tribunal finds that Mr Milne’s criminal history over a three-year period, together with a lack of medical evidence that he was suffering from any diagnosed condition, support the conclusion that Mr Milne remains at a considerable risk of re-offending. His wife was unable to detect or prevent the offending behaviour, even though she lived with Mr Milne and was close to him. Ms Wheeler, in whose care Mr Milne will be released in May 2010, has doubts about the extent of his offending and sees no need for him to be kept away from children. The suggestion that Mr Milne be accompanied by an adult appears to be concerned more with Mr Milne’s safety than any concerns for the welfare of the public. This has serious potential consequences for the protection of the Australian community, particularly young children who are especially vulnerable.
26. On the question of general deterrence (paragraph 2.11 of the Direction) the Tribunal finds that cancellation of Mr Milne’s visa may prevent or discourage similar conduct by other persons.
27. In all the circumstances the Tribunal is satisfied that, if Mr Milne’s visa is not cancelled, the community would be not protected from further offending by him. Therefore in respect of the first primary consideration the Tribunal finds strongly in favour of cancellation of the visa.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
28. The Australian community expects that non‑citizens will obey Australian laws while in Australia, although members of the community who are fully aware of Mr Milne’s circumstances, including his age, state of health, time in Australia and his lack of prior convictions, would expect a fair and humane approach to be taken (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054).
29. The Tribunal takes into account the seriousness and number of the offences committed by Mr Milne and that the offences were committed over a three-year period against his own granddaughter and other children. This demonstrates disrespect for Australian laws. The Tribunal accepts that Mr Milne has expressed remorse and he pleaded guilty at the earliest opportunity, although whether the remorse is genuine is somewhat doubtful in view of his comments to the Tribunal and the Department, after four years in gaol, that he was told to plead guilty and did so even if he did not understand the charges.
30. Although Mr Milne had no prior convictions at the time of the offences, and the Australian community would expect that he should be given an opportunity to change his behaviour, Mr Milne has not shown an ability and genuine desire to do so. The Tribunal is satisfied that, although Mr Milne has spent most of his adult life in Australia, the community would expect that the perpetrator of such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending. Therefore in respect of the second primary consideration the Tribunal finds strongly in favour of cancellation the visa.
THE BEST INTERESTS OF A CHILD OR CHILDREN WHO HAVE A PARENTAL OR OTHER CLOSE RELATIONSHIP WITH MR MILNE
31. Mr Milne told the Tribunal that his children are adults and his six grandchildren are aged from 4 years to 22 years. He said that he does not want to lose contact with his grandchildren. In a written statement received on 8 May 2009 Ms Wheeler’s two children (one of whom is aged nearly 18 years) said that they have a close relationship with their grandfather, and that cancellation of his visa would deprive them of valuable family time with him. They have regular telephone contact with Mr Milne.
32. The Tribunal finds that the only children under the age of 18 years who have a close relationship with Mr Milne and whose interests would be affected by a decision to cancel his visa are his grandchildren (apart from the granddaughter who is a victim of some of the offences) with whom he has maintained contact. Although physical contact would not be feasible if the visa was cancelled, some form of contact could be maintained through telephone and electronic means. Therefore this primary consideration has minimal practical relevance in the application under review.
OTHER CONSIDERATIONS
33. Mr Milne stated that if sent back to the United Kingdom aged nearly 70 years after an absence of 40 years he would have no place to live. He considers Australia to be his home, and his wife is now an Australian citizen. Mr Milne told the Tribunal that his elderly mother, a brother and a sister live in the United Kingdom, but they have their own health issues, so effectively he would be on his own. He has not seen or contacted his relatives for many years and said they would be unable to help him. He said that his wife and children are willing to support him on his release from gaol, and he hopes to resume living with his wife after a period of re-adjustment. Before his imprisonment he depended on his daughter for primary support. In his written statement received on 14 April 2009 Mr Milne referred to his contribution to the community which he said involved arranging social functions for other newly-arrived immigrants in the hostel in which they were living in the early 1970s, and other social activities in his local community when he moved to his own home in Melbourne. He also referred to his involvement with ex-service organisations and his children’s and grandchildren’s sporting activities.
34. Mr Milne emphasised his assistance to his family in times of need; his severe health issues such as depression and anxiety for which he is under medication; his dependency on his daughter and other family members in Australia for support; and the uncertain relationship with his wife. He also said that he has been a good, loving husband, father, grandfather and perhaps in the near future a great grandfather.
35. In a written statement dated 9 July 2006 Ms Wheeler said that while in gaol Mr Milne has had continuous family support through weekly visits from her and her partner, from Mrs Milne and their oldest grandchild. He also has fortnightly telephone contact with his second-oldest grandchild. Ms Wheeler stated that if Mr Milne is not permitted to remain in Australia he would not be able to survive on his own and this would result in extreme anxiety and hardship for the family. She emphasised that Mr Milne has been receiving psychiatric treatment since June 2004 and she has been his primary carer. She said that she would not be in a position to assist him if he returns to the United Kingdom, and she holds grave concerns for his health and well-being. His family would be denied physical contact and would be unable to monitor his mental or physical health.
36. In a written statement received on 8 May 2009 Ms Wheeler added that if forced to return to the United Kingdom Mr Milne would be on his own and has no family who would be in a position to assist. She emphasised that at the time of Mr Milne’s application for citizenship in 2004 he had satisfied the criteria and had no prior convictions, yet the Minister’s delegate decided to cancel his visa. She stated that her parents have been in Australia for nearly 40 years, and the threat of cancellation of Mr Milne’s visa has added to the stress being experienced by the family. In oral evidence Ms Wheeler said that cancellation of the visa would cause hardship to immediate family members living in Australia. Under cross-examination she agreed that she has not attempted to contact Mr Milne’s mother, brother or sister in the United Kingdom, nor has she made any enquiries about Mr Milne’s eligibility for a pension in the United Kingdom.
37. Mrs Milne stated that she and Mr Milne have always managed to work out difficulties that have arisen throughout the marriage. She said that Australia is now their home and she would be devastated if Mr Milne is forced to return to the United Kingdom, particularly as family and friends have played an important role in their lives. Mrs Milne stated that she visits Mr Milne whenever possible, and her daughter’s children keep in regular contact with him by telephone. She told the Tribunal that she keeps in touch with her son (the father of one of the victims) and she hopes that the family as a whole will continue to support each other when Mr Milne is released from gaol. Mrs Milne explained that she has not made a decision whether she would accompany Mr Milne if he is removed to the United Kingdom. She emphasised that, in addition to family disruption and separation from her children and grandchildren, such a move would be difficult financially because she would be forced to sell her home and leave her employment which she enjoys.
38. The Tribunal accepts the evidence from Ms Wheeler that she would continue to care for Mr Milne when he is released on parole. The Tribunal takes into account that Mr Milne has lived in Australia as the holder of a permanent visa since 1970 and the compassionate circumstances involving any decision requiring him to return to the United Kingdom, which would cause severe disruption to his lifestyle and deprive him of the support of his daughter and other family members in Australia. Whether he will reconcile with his wife is not certain, although she seems to desire to maintain the marriage. The Tribunal accepts that family members in the United Kingdom might not be in a position to assist, however Mr Milne would have access to the public health and welfare system in the United Kingdom. Although there is no evidence of rehabilitation or treatment, the Tribunal takes into account that his conduct in gaol has been good. On balance, in respect of the secondary considerations, the Tribunal finds against the cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
39. The Tribunal accepts that to re-establish himself in his country of origin in unfamiliar circumstances after a long absence would be extremely difficult for Mr Milne at his age and with his health issues. However, in weighing up all the circumstances of the primary considerations and then the secondary considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, for the reasons given, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, and the discretion to cancel the visa should be exercised.
DECISION
40. The Tribunal affirms the decision under review.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Mara Putnis
Associate
Date of hearing: 14 May 2009
Date of decision: 18 May 2009
Advocate for applicant: Ms D Wheeler
Advocate for respondent: Mr N Rogers
Solicitor for respondent: Australian Government Solicitor
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