Morais and Minister for Immigration and Multicultural Affairs
[2006] AATA 411
•12 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 411
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/138
GENERAL ADMINISTRATIVE DIVISION ) Re JOSE MORAIS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date12 May 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
MIGRATION – visa cancellation – applicant a citizen of Portugal – arrived here aged 19 years – currently 33 years – multiple offences for possess and traffic drugs – offences of dishonesty and sex offences – ‘substantial criminal record’ – whether discretion should be exercised favourably – Direction 21 criteria considered – decision affirmed
Migration Act 1958 (Cth) s 499 and s 501 (2)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
REASONS FOR DECISION
12 May 2006 Mr John Handley, Senior Member 1. On 3 February 2006, a delegate of the Respondent decided that Mr Morais did not pass the “character test” and did not satisfy him that the “character test” was passed. Pursuant to s 501 (2) of the Migration Act 1958 (“the Act”), the delegate decided to cancel a visa that had been issued to Mr Morais. This application was lodged to review that decision.
introduction
2. Mr Morais was born in Portugal on 22 September 1972 and is presently 33 years of age. He was educated in Portugal to the equivalent to Year 9 standard and thereafter entered the workforce and obtained qualifications as a boiler maker and as a fitter and turner. When he was 19 years of age, he entered Australia on 11 May 1992 and has lived here subsequently. Mr Morais later married and a child of that relationship, Sarah, was born on 5 August 1992. The marriage subsequently ended and Mr Morais has had no contact with his former wife or his daughter since 1996. From approximately 1999 or 2000, Mr Morais has been engaged in a defacto relationship with Laura Maree Devenish. Ms Devenish has a son, Travis, currently aged 8 years from a previous relationship. Mr Morais describes his relationship with Travis as a “father figure”.
3. The Respondent issued a Notice of Intention to Cancel (“the Notice”) Mr Morais’ visa on 5 August 2004 but that Notice subsequently lapsed. A further Notice was issued on 13 October 2005. Each Notice contained an invitation to Mr Morais to respond and provide information, in effect, “to show cause” why he should not be deported. A number of letters of support of Mr Morais were forwarded to the Respondent on 23 August 2004. Following the subsequent Notice, another letter was forwarded to the Respondent by a person known to Mr Morais. The contents of those documents will be referred to later. The decision under review was made following the issue of the Notice of 13 October 2005. The Notice was issued having regard to the convictions of Mr Morais during his residency in Australia.
convictions
4. Mr Morais arrived in Australia on 11 May 1992 and was “processed” by police at Dandenong on 5 October 1992. That “processing” followed his arrest for offences for which he was convicted in 1993 of indecent assault and unlawfully on premises. Judge R P Lewis in the Victorian County Court on 15 April 2003 noted in his sentencing remarks that between 1993 and May 2001
You boast 42 convictions from 12 Court appearances including a conviction for indecent assault. You have served a number of terms of imprisonment in 1993, 1996, 1998, 2000 and 2001. In addition you have breached an intensive corrections order and an order suspending sentence and have a conviction for breaching an intervention order.
5. An examination of the information lodged by the Respondent obtained from the Victorian Police indicates that Mr Morais has been convicted of a number of offences, some of which have been repeated and which attract three different categories namely of dishonesty, of association with drugs and of a sexual nature. The dishonesty offences comprise convictions for theft of motor vehicles, receiving stolen goods, possessing stolen goods, unlawful possession and obtaining property by deception. The drug offences relate to the possession and trafficking in amphetamines and heroin and the possession of cannabis and ecstasy. Associated with the drug offences were convictions in 2004 for the possession of money and property being the proceeds of crime. It was noted also by Judge Strong in the County Court in Melbourne on 17 August 2004 that an imitation pistol was found in his possession in November 2002 and which was considered by His Honour for use, or possible use, “in some illicit activity”.
6. Mr Morais has also been convicted on two occasions for sexual offences being, indecent assault in 1993 and two offences in 2003 being, one count of committing an indecent act with a child under the age of 16 and one count of taking part in an act of sexual penetration of a child aged between 10 and 16 years.
7. The sexual offences of 2003 resulted in sentences of 12 months and 2 years 9 months respectively to be served concurrently. The offences of 2004, being the charges arising out of the possession of money and property from the proceeds of crime (those offences having their origin in the trafficking of amphetamines) resulted in sentences of 2 years and 6 months and 3 months respectively. Those sentences were to be served cumulatively. Judge Strong noted in his sentencing remarks on 17 August 2004 that the offences which gave rise to the sentence in 2004 occurred whilst Mr Morais was on parole from previous convictions.
8. Mr Morais also has convictions for unlicensed driving and driving an unregistered vehicle.
cancellation of visa on character grounds
9. The Minister’s delegate decided that Mr Morais did not pass the “character test” and the delegate reasonably suspected that the “character test” was not passed (refer s 501 (2) of the Act). A person does not pass the “character test” under s 501 (6) if that person has a “substantial criminal record”. Under ss (7) a person does have a “substantial criminal record” if that person has been sentenced to a term of imprisonment for 12 months or more. Having regard to the sentences imposed upon Mr Morais (refer above), he clearly has a “substantial criminal record”.
10. The language of ss (2) is discretionary and guidance in the exercise of the discretion as to whether a visa should be cancelled is to be found in Ministerial Direction 21 issued by the Minister pursuant to s 499 of the Act. Direction 21 (“the Direction”) was the subject of submissions made to the delegate (T36) and from which it would appear that the delegate had regard when making his decision to cancel Mr Morais’ visa.
11. A copy of the Direction was served on Mr Morais together with a number of other documents, including the submissions to the delegate and the delegate’s decision on 17 February 2006 (refer T37).
letters in support
12. Mr Morais himself has written three letters on 18 August 2004, 21 October 2005 and 1 November 2005 found at pages 61 – 64, 92 – 93 and 97 respectively. He also completed a questionnaire on 1 November 2005 found at pages 98 – 103.
13. In Mr Morais’ first letter he recorded that he understood ‑
I have made significant mistakes in my immediate past yet I wish to emphasise my time in this country (being over 10 years) has had a great effect on my social and economic life and removal from Australia would be detrimental. I have read through the paperwork and have realised DIMA’s position. I wish to receive a second chance and will take this notice as a serious warning. In relation to my conviction of Melbourne County Court (15/04/2003) I wish to make it known I was severely intoxicated at such time of the offence and regret my actions. My suggestion and plea to your office is to monitor my progression in prison and use the rule of law as it applies to rehabilitation; if I am granted parole thus it would suggest I’m rehabilitated and deserve time to complete my parole and prove myself.
14. Mr Morais concluded that he would be undergoing “intensive psychotherapy” in prison and upon release and was then being treated for depression. He concluded by expressing that he was “sincerely sorry” for his offences, that his trade skills and qualifications would be used to obtain employment and he was not intending to “receive” unemployment benefits.
15. In his letter of 21 October 2005, Mr Morais attached copies of certificates and other documents obtained by him with respect to qualifications he had obtained whilst he had been a resident of the Port Phillip and the Ararat gaol. He recorded that he had “steadily worked on my rehabilitation, that I have been drug and incident free whilst in gaol and had not failed any random drug tests”. He concluded that he wished to “remain in Australia and make proper amends for my past offences. A return to Portugal will result in considerable more pain for both my family and friends in Australia”.
16. In his letter of 1 November 2005, Mr Morais reaffirmed some of his previous comments and recorded that he would be prepared to submit to regular drug testing upon release from gaol in the event that he was permitted to stay in Australia. He also recorded that employment opportunities had been made available to him upon release which he would take, that he has been in a long term defacto relationship with Laura Devenish and he intended to “pursue” marriage with her. He recorded that he had “no strong ties” with Portugal.
17. In the questionnaire, Mr Morais recorded that he had not had contact with his daughter Sarah since 1996 but he was “hoping” that when she achieves 18 years, he “will be able to establish contact with her independent of her mother”.
18. In response to a question of whether he had any concerns or fears about returning to Portugal, Mr Morais recorded:
I don’t speak the language very well. I don’t have any family support in Portugal. My mother and brother are deceased. I’ve been disowned by my father and haven’t been in contact with him for 13 years. Being removed from Australia will only cause more pain in my life. I won’t have a place to live, I don’t know how I will survive. . . . I will be homeless and destitute. I will try and leave Portugal again it’s not my home.
19. In a “prisoner employment report” completed by the industry supervisor at Barwon gaol on 20 October 2005, Mr Morais’ attendance, punctuality, effort, general attitude and OH&S awareness were all recorded as being “good”. Mr Jones, the industry supervisor, commented:
Carlos has worked well in this industry. He is on the top pay bracket and will do what is asked of him. Helped to set up the new window industry by welding and making trolleys and benches.
He recorded that Mr Morais had not “received any minor offences or workplace dismissals in the past six months”.
20. A “prisoner character report” completed on 22 October 2005, records that Mr Morais has attended anger management, first aid, forklift and drug and alcohol semi intensive courses whilst in prison at Barwon. He has been employed “on an ad hoc basis due to lack of meaningful work available. Does attend when required to do so”. He is recorded as having received visits from friends and his defacto partner “on a fairly regular basis until the last six months when they became irregular”. A positive drug test was detected on 18 May 2004 for which he was fined. He has also been fined for “unauthorised smoking” on 7 May 2005 and 23 September 2005.
21. In a letter of 23 August 2004 (page 68), Ms Devenish records that she had been in a defacto relationship with Mr Morais for four or five years and the decision to deport him had “a devastating effect on Carlos and myself”. She recorded that his “broken marriage” and the loss of his mother caused Mr Morais to find “it hard to keep grip – to follow the right path”. It was her belief that he had a “promising future” if “he is given one more chance that he can prove himself to be of benefit to the Australian community”. She said that Mr Morais had been a major support to her when they first met and when she was pregnant and a single person. She recorded that he had emotionally and financially supported her and by reason of a business that she was then intending to commence she will include Mr Morais as a partner “when he resumes to reside in our community”. She recorded that Mr Morais understood that he would need “to follow in new directions which I will be fortunate in helping him succeed” and he was “desperate not to lose his residency in the Australian community”. Additionally, Ms Devenish recorded that Mr Morais “is known as a father to my son Travis”. She concluded “I truly believe he can redeem himself if given the one last chance and it would be unfortunate if he has to leave as then I will have to pack up my family and leave my home country as well”.
22. Beverly Joy Lacey, a preschool mothercraft nurse, wrote a letter on 23 August 2004 recording that she had known Mr Morais for about eight years and regarded him as being a good friend. She described him as “a friendly, helpful and reliable person who keeps his word. He is always cheerful and I feel if given the chance to be among his friends will become a good citizen in the local community”.
23. Ariel Hardovin recorded in a letter of 23 August 2004 that he had known Mr Morais for about ten years. He recorded that Mr Morais had “a dramatic upbringing . . . in one case involving a car accident he was the only survivor in a car with four occupants”. He recorded that Mr Morais “began to mix with the wrong crowd” shortly after arriving in Australia and “bad friends influenced him to commit a lot of petty crimes the [sic] he never intended on doing”. Mr Hardovin recorded that he was employed by Commercial Systems Pty Ltd and he was willing to assist Mr Morais in obtaining employment with that employer. Additionally, he recorded that he lived with his fiancé Beverley Lacey and it was their joint intention to offer Mr Morais accommodation within their three bedroom house.
24. A letter was written on 23 August 2004 by Consolacion Peric. She recorded that she was writing on behalf of the Peric family who found it ‑
Devastating for Mr Morais and for everyone in his circle of friends to hear of his receipt of deportation advice from the Department of Immigration and Ethnic Affairs. While in recent custody of Australian prisons he had always spoken of not re-offending again and that he vowed that his current prison term will be the last term he has to serve.
She recorded that her family had known Mr Morais for about ten years and who regarded him as a “caring and a faithful friend”. Mrs Peric recorded that she and other friends had reassured Mr Morais that they were dependable and his former “arrogance regressed into a more humble and trustworthy nature”. She recorded that she would endeavour to assist Mr Morais in obtaining employment and being a responsible member of the community.
25. Mr Mukremin Ozerkan wrote a letter on 23 October 2005 recording that he was the proprietor of the company Ozerkan Pty Ltd and who had known Mr Morais for approximately eight years. It was his opinion that Mr Morais was of good character and upon release from gaol he was prepared to offer him employment. He said he had “enormous faith” in Mr Morais and his trade qualifications as a fitter and turner were highly sought.
certificates
26. The T‑documents record certificates awarded to Mr Morais in December 2005 following a “semi intensive drug treatment program” (40 hour), in June 2005 following the completion of an anger management program, in August 2005 following completion of forklift competence at the Gordon Institute and in September 2005 following completion of advanced first aid at the Holmesglen Institute of TAFE.
the hearing
27. The hearing proceeded on 8 May 2006. Mr Kappadath of Counsel appeared on behalf of Mr Morais. Ms McNeil appeared on behalf of the Respondent Minister. The T‑documents were received into evidence as were extracts from the Victorian Police Criminal History Office. Mr Morais lodged a statement from Miss Clarice Peric. Miss Peric and Ms Devenish were both called to give evidence.
jose carlos morais
28. Mr Morais has recently been a resident of the Ararat gaol where he said he had been working daily as a welder. He said that he is qualified as a boiler maker and fitter and turner having obtained those qualifications in Portugal. He said that upon release from gaol he has a job to go to with his friend Mick Ozerkan who has agreed to employ him as a boiler maker. Mr Morais said that Mr Ozerkan was aware of his criminal history (although it is not referred to in his statement of 23 October 2005 refer paragraph 25 earlier). Additionally, Mr Morais was unaware why Mr Ozerkan was not being called to give evidence in these proceedings.
29. Mr Morais said that he had engaged in a number of rehabilitation programs whilst in gaol, principally for drug and alcohol dependence, anger management, first aid and occupational health and safety. He has also been required to enter into a sex offender’s program referred to as “CPS”. However, Mr Morais was unaware of the course content or what he was required to do in it. He said that he entered the courses because he previously had “a problem with drugs” and wanted to be rehabilitated and to change. He said the courses had been available to him because of the lengthy duration of his current sentence whereas they have not been available to him during the previous occasions when he has been incarcerated for relatively short periods. He said that he has learnt from the courses and has better opportunities to obtain employment and to remain drug free upon release. Additionally, he said that it is more than likely that he will not re-offend or have associations with persons with whom offences had previously been committed. Mr Morais said that he has been drug free whilst in prison, despite his belief that there is greater availability of drugs inside gaols than outside. He said that he has been drug tested on 50 or 60 occasions whilst in gaol and has only returned one positive test at the Port Phillip Prison in 2004. He said that occasion caused a positive test because he then shared a cell with a person who had been smoking cannabis and he had been exposed to, and therefore affected by, secondary smoke.
30. Mr Morais said that he now has no desire at all to take illegal drugs. He said that he felt as if he had overcome dependence upon them. He said by reason of the courses that he had completed, he “thinks about drugs in a new and different way”. He was confident that he would resist opportunities that may be presented to him in the future to use drugs. Mr Morais said that he first started using drugs in 1996 and then rapidly became addicted to heroin. He ceased taking heroin but used amphetamines to assist overcoming his heroin dependence. That is, he regarded amphetamines as being a lesser substance. He said that he has subsequently overcome his addiction to amphetamines.
31. Additionally, it was Mr Morais’ belief that he would remain drug free in order to satisfy his partner, Laura Devenish, that he was worthy of her trust and in turn she would be prepared to resume a relationship with him. He said that he understood that if he were to resume his former drug habit, and therefore the potential to commit crime, that he would end any opportunity of having a relationship with Ms Devenish and with her son Travis.
32. Mr Morais has been in gaol since November 2002. He said that for some years prior to his present period of incarceration he had been depressed and had been treated for it. He said that he had consumed Avanzar, an anti-depressant medication, but has since ceased to consume that drug. He said it was prescribed to him by a doctor in Dandenong whose surname he could not recall but whose first name was John. He said that doctor was a general practitioner. He said he had not ever been treated by a psychiatrist outside prison. He said that he had seen psychiatrists at the Barwon and Ararat prisons and felt that he was now “better”. He said that he ceased taking the medication because he did not want to be dependent upon it.
33. With respect to his prior criminal offences, Mr Morais said that they were mainly associated with his consumption of illegal substances. He said that by reason of his drug habit he was used by other people “to do bad things for them”.
34. With respect to relationships in Australia, Mr Morais said that he was married and had a daughter, Sarah, however the marriage ended in 1996. He said he came home one day and found that his wife and daughter had left. He said he has had no contact with his wife or daughter subsequently. He said she would be presently 14 years of age and has been attempting to locate her through a solicitor of the legal aid office who he met in 2005 at the Ararat prison. He has learnt that his wife had told Sarah that he was dead. On a number of occasions he has expressed the wish to have a relationship with Sarah and is attempting to locate her. He said that he will be more vigilant in his attempts to find her after she achieves the age of 18 years. He said he would want to have the opportunity of talking to her about his previous behaviour and the reasons for it. He said he would also want to impress on her that he has reformed.
35. In about 1999 or 2000, Mr Morais commenced a relationship with Laura Devenish. He said that they lived together for about two or three years and he has maintained contact with her by telephone since he was imprisoned. He said that her son Travis regards him as a father figure and he would want to have the opportunity of resuming his relationship with both Laura and Travis. Mr Morais said that Laura used to visit him regularly and he described the relationship now as she being his girlfriend. He said it was also his intention that she be his future wife. He acknowledged that she has indicated to him that she would want him to “prove himself” upon release from gaol before she would be prepared to resume a relationship with him. He said that when he lived with Laura he was employed and he financially supported her and Travis. In the event that he was deported it was his belief that both Laura and Travis would be devastated but was also of the belief that she would “pack up and leave to travel to Portugal”.
36. Mr Morais also said that he had close friendships with the Peric family who had been of support to him. Additionally, he said that when Mr Soli Peric died last year he made a promise to his wife Consolacion and daughter Clarice that he would “look after” them upon his release from gaol. He said that he saw them daily prior to commencement of his incarceration and subsequently has had contact with them by telephone at least once per week. He said that Mrs Peric and Clarice pay money into his bank account monthly to meet the cost of phone calls. He said that they were aware of his prior convictions yet they continue to support him and stand by him. He acknowledged that in the event that he was released from gaol and returned to crime and or resumed his drug habit that he would be letting them down as well as his other friends.
37. Mr Morais said that in the event that he was deported to Portugal, he would suffer considerable hardship. He said that his parents and his brother were deceased and he has two surviving sisters only however they refused to talk with him. He said Portugal is a poor country and jobs are hard to find. He said that he “hardly speaks the language”.
38. Mr Morais said that he suffered a traumatic experience in Portugal at the age of 15 when he was a passenger in a motor car which crashed and where four other occupants were all killed. He said that he has been unable to forget that experience. (Whilst recalling that incident in evidence, he was visibly upset and was crying). Additionally, he said that he had lost contact with his sisters because they blame him for the death of his brother. He said that he had been asked to accompany his brother to a night club because it was known that his brother drank heavily and drove motor cars erratically. Mr Morais said that he did not accompany his brother on one such occasion. Whilst returning home, Mr Morais’ brother was involved in a motor vehicle accident, apparently when drunk, and was killed. He said that there is nothing for him to return to in Portugal and he regarded Australia as his home. He could not explain why he had not taken out Australian citizenship but said that he thought that he had become an Australian citizen. It was his intention long term to become married, own a house, have full time employment, have an income, possibly have more children and be a good citizen.
39. Mr Morais denied that he had any “problems” with sexual relationships. He acknowledged that he had been convicted in 2003 of two acts of indecency upon a child under the age of 16. However, he said that on that occasion he had been drunk, he had fallen asleep, something is alleged to have happened whilst he was asleep (and of which he has no memory) and two days later allegations were made against him. On that occasion, he said that it was rare for him to have been drunk but he had been to a birthday party and this had been the only occasion where he had offended whilst under the influence of alcohol. He said that Laura was aware of that incident, that it had affected their relationship and whilst she was initially upset by it, she knew that was not typical of his behaviour.
40. In relation to the 1993 conviction of indecent assault, Mr Morais denied that he had committed any act of indecency. He said he went to visit a friend in a block of flats and had been told that his friend’s front door would be open and he could enter without knocking. He said he went into another person’s flat by mistake and was approached by a female occupant who alleged that he had offended. Mr Morais understood that he was then charged with being unlawfully on premises.
41. In concluding his evidence, Mr Morais again reaffirmed that if released from gaol he would not associate with persons who previously introduced him to drugs and who coerced him into committing crimes. He said that there are some friends outside gaol who presently take drugs but he would not associate with them. He was confident he would resist any offer to consume illegal drugs. He was adamant of his intention to resume a relationship with Laura and Travis and was prepared to accept her terms of being drug free before she was prepared to resume a relationship with him. He said that Laura and he had agreed some time ago to have a “time out” from their relationship where they agreed not to contact each other. He said they wanted to know whether they maintained feelings for each other. He was reassured by recently speaking with her and by her visiting him that his feelings towards her remain and this has continued to encourage him to undertake rehabilitation. Additionally, he said that by completing the drug and alcohol program, he has learnt of the affect drugs had upon him and the influence upon his behaviour. He also understood the hardship and offence that he had caused to other persons by trafficking drugs.
laura maree devenish
42. Ms Devenish said that she has known Mr Morais for about six and a half years. She said that she met him through other friends when she was six months pregnant with Travis. Sometime later they commenced living together in her father’s house and later they moved out on their own. She said that Mr Morais had helped her in relation to a domestic dispute that she had had with Travis’ father, that he had been her “protector” and he had financially supported her. She said that Travis “loves him to death”.
43. Prior to November 2002 when Mr Morais was incarcerated she had moved out of the residence that she shared with him and returned to live with her father. She said that she was unhappy about his continuing involvement with drugs and “wanted him to be clean”. She said that by moving away from him she wanted to send a message about her regard for the seriousness of his behaviour. She said that she was aware of his criminal history when she first met him but she thought that Mr Morais had “gone down hill” after his mother died. Nonetheless, she continued to support him through his previous Court appearances and had sent him some money to meet the cost of telephone calls. She has also spoken with him about her intention not to resume a day to day relationship upon his release from gaol until he satisfies her that he is drug free, stable, working and earning and income.
44. Ms Devenish said that she saw Mr Morais in November 2002 when he was incarcerated and saw him again in March of this year for about half an hour. She said they spoke about these proceedings and whether she would support him at the hearing. Whereas previously he had been angry and “a mess”, she observed that he was calm and was healthier. She has accepted his assurances that he is drug free. She was also impressed that he had completed rehabilitation courses whilst in prison. However, she reaffirmed that she wanted to see that Mr Morais has “progressed” upon release from gaol before deciding whether to resume a relationship with him where they lived together. She also said that she would want to be assured that he was no longer having contact with his former associates.
45. Ms Devenish said that she would be very upset if Mr Morais was deported to Portugal and felt that she would be “lost” without him. She said that they presently are “very close” but she was not prepared to show her feelings to him because she wants him “to do the right thing” upon release from prison. Ms Devenish said that she would not travel to Portugal in the event that he was deported because she could not afford to do so and because she would lose contact with her 10 year old daughter with whom she has access every second weekend and one evening per week. Her daughter, Katie, was previously in her custody but custody was granted to her father in contested proceedings when he learnt of the prior convictions of Mr Morais. Ms Devenish also said that Travis would be very upset in the event that Mr Morais was deported. She said that he contacts them by telephone from gaol on a regular basis but they have not communicated by letter or by birthday or Christmas cards.
46. Ms Devenish said that she was aware of the sex offences for which Mr Morais was convicted in 2003. She said that Mr Morais had never been unkind or sexually offensive to her. She said at that time she was “shattered” but did say that she would have thought that the victim would have also been shattered if she had been raped. She said that the victim had “turned up at a friend’s house a week later wearing a mini skirt”. Ms Devenish said that she referred to the offence as “rape” because the offence had been described in those terms by arresting police. She said that she did not ask Mr Morais about the offence because she “didn’t want to know”.
clarice angela peric
47. Miss Peric is presently 20 years of age and is a full time student at the RMIT University in Melbourne. She said that Mr Morais has been a friend of the Peric family for about 10 years. She would have been about 10 years of age when she first met him. She regards Mr Morais as an uncle figure following the death of her father last year. She said her father was a mentor to Mr Morais.
48. Miss Peric said that prior to his incarceration in November 2002, Mr Morais was “caught in a rut”. Subsequently she observed his character had changed, he has developed “a heart”, his life has more meaning and he is more considerate of others. She said that she was aware that he has an extensive criminal history but he has never offended against her or her family.
49. Miss Peric said that she has visited Mr Morais on about four occasions whilst he has been in gaol and has received weekly telephone calls from him. She said that Mr Morais has also been close to her mother especially since her father died last year. She said that he has become much more considerate and frequently asks how they are coping. She has observed him crying but has also observed him to be happier, healthy and in a good mood. It is her belief that he is motivated to be supportive of other persons and recalls especially that he telephoned her father shortly before his death. By reason of the frequency of contact with him it is her belief that Mr Morais is now prepared to take responsibility for his behaviour, accept that his previous conduct was wrong and has expressed his wish to change his lifestyle. She said that he has told her that he will not associate with persons with whom he previously offended and his intention is to obtain a home, to work and earn income.
50. In the event that he is deported it was her belief that his opportunity to make amends will be denied and his self worth would be reduced. She said that her family would be prepared to offer him accommodation together with moral and financial support. Whilst in prison, she and her mother have paid $120 per month into his telephone account.
submissions
51. Mr Kappathad conceded that notwithstanding Mr Morais could not pass the “character test” under s 501 of the Act the discretion should be exercised in favour of his client. It was acknowledged that Mr Morais does have a considerable criminal history but it was submitted that there was little likelihood that his previous behaviour would be repeated because of his completion of a number of rehabilitation programs. In those circumstances it was submitted that the risk to the Australian community was minimal. It was contended that inferences should be drawn that a pattern of offending by Mr Morais was related significantly to his drug habit and whilst that was not put by way of justification it was submitted that a combination of arriving here in 1992 with poor English skills, having difficulty settling in a new country, a breakdown of his marriage shortly thereafter, the absence of his daughter and his dependence on illegal substances were all factors contributing to his criminal behaviour. Additionally it was put that the trafficking offences should be viewed “at the lowest end of seriousness” because there was no evidence that Mr Morais was engaged in trafficking for profit but rather to satisfy his own dependence.
52. It was submitted that the current period of incarceration had caused the applicant to recognise that his previous behaviour was wrong and with that knowledge he entered into and completed a number of programs to prepare himself to re-enter the Australian community as a useful member. It was submitted that on the previous occasions where he had been incarcerated, he had been denied opportunities to enter rehabilitation programs. Additionally it was submitted that Mr Morais, by his evidence, had expressed remorse and confidence should be adopted that he will not re-offend.
53. With respect to the best interests of the children, it was submitted that Mr Morais deserves the opportunity to become reacquainted with his daughter which would be virtually impossible in the event that he is deported. Additionally it was submitted that the affect on Travis should not be overlooked and in the event of visa cancellation, the best interests of both those children will be adversely affected.
54. Mr Kappadath submitted that Mr Morais should not be deported because he has no meaningful link with Portugal, he has no family other than two sisters with whom there is an adverse relationship. It was put that in the event that he returned to Portugal he would in fact be an alien which would cause a far more adverse consequence than the time that he has spent to date in gaols. He would also lose association with Laura Devenish and Travis and the Peric family.
55. It was submitted that in the event that Mr Morais had applied for, and obtained Australian citizenship, this application would not have been heard. It was submitted that Mr Morais believed that he was an Australian citizen and within Australia he had contributed to the life of his close circle of friends which should be regarded as his primary society. It was submitted that Mr Morais should be regarded as having been absorbed into the Australian community and the length of his residence here was an important factor to be determined in the exercise of the discretion under Direction 21.
56. On balance it was submitted that Mr Morais should be given another chance because he now realises that in the event that he offended upon release it would be unlikely that he would ever be able to resist an application to cancel his visa. But for Mr Morais being given a warning earlier it was submitted that Mr Morais had failed to realise the seriousness of his behaviour until he entered prison and completed rehabilitation programs. By that knowledge and experience it was submitted that Mr Morais would not re-offend in the event that he was released into the Australian community.
57. Ms McNeil on behalf of the Minister submitted that the extent of Mr Morais’ criminal conduct, involving trafficking illegal drugs and indecent assault, was repugnant to the Australian community. It was noted that Mr Morais had pleaded guilty to many of his offences including the sexual assault on a person under the age of 16. Additionally it was submitted that upon Mr Morais’ evidence at the hearing, he failed to understand what constituted the crime of trafficking. It was submitted that the repetition of offences over many years should cause a finding that there was an increase risk of recidivism on the part of Mr Morais in the event that he was released. It was submitted that he is a person who resorts to crime, involving the trafficking of drugs, when he “learns of bad news” and the frequency of his criminal conduct and his periods of incarceration do not permit any finding, with confidence, that he would obey Australian laws in the event that he was released.
58. It was submitted that Mr Morais has little connection with the Australian community other than with Ms Devenish and with the Peric family. It was noted that no other persons in the Australian community attended the hearing to give evidence on his behalf, including Mr Ozerkan who wrote a letter found within the T‑documents purporting to offer Mr Morais employment in the event of his release. Additionally it was put that the comments made by sentencing Judges have considerable weight and should be followed.
59. To the extent that Mr Morais had entered into rehabilitation programs it was submitted that he had many opportunities in the past to enter into counselling or rehabilitation both inside and outside gaols and had not availed himself of those opportunities. Indeed the current attitude of Ms Devenish should be given considerable weight because she is not prepared to resume a living relationship with Mr Morais upon release until he proves to her that he is drug free, stable, in employment and earning an income. That belief should be interpreted as her having no real confidence that upon release he would not re-offend.
60. Ms McNeil conceded that in the event that Mr Morais’ visa is cancelled there will be an affect upon his relationship with Travis but in the circumstances it would be minimal. It was noted that Travis was two years and nine months of age when Mr Morais was imprisoned in November 2002. At that time there was no “real” relationship and the relationship subsequently cannot be found to be strong because of the absence of personal contact. It was acknowledged that there would be some disruption to the relationship with Ms Devenish and with the Peric family in the event of deportation but communication could continue either by correspondence or by telephone.
61. On balance it was submitted that considerable weight should be attached to the prior conduct of Mr Morais and on balance his visa should be cancelled.
conclusion and reasons for decision
62. It has become apparent in the course of preparing these reasons that the visa sought to be cancelled by the Minister has been differently described.
63. When the Minister gave Notice to Mr Morais on 5 August 2004 of an intention to cancel his visa, it was then described as a “Sub-class 100 General (Residence) (Spouse) Visa” granted on 5 May 1992 (T‑documents, page 42).
64. For reasons which are not apparent (to me) the Minister did not act on that Notice and later decided to issue another Notice of Intention to consider cancelling the visa. Such a Notice was issued to Mr Morais on 13 October 2005 (T23, page 85 – 86). The visa then in issue is described as a “Transitional Permanent Visa”. The Notice records that that visa is the “sole authority to remain in Australia”. A similar description of that visa is made in the summary of evidence prepared by departmental officers for the Minister’s delegate in January 2006 (T‑documents, page 108).
65. The decision made by the Minister’s delegate on 3 February 2005 was to “cancel the visa”. No reference was made to either of the two descriptions referred to earlier.
66. In Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229, a Full Federal Court decided that where an error appeared in the Minister’s decision where a visa was cancelled which in fact did not exist, an error of law was necessarily committed.
67. In the present case no issue was raised by either representative prior to or at the hearing concerning the visas as described by the T‑documents. The delegate’s decision was to cancel “the visa”. For the purposes of this decision I am satisfied that the decision made was a cancellation of “the visa” that was in existence at the time of cancellation.
direction 21
68. Section 499 (2A) of the Act compels compliance with a Direction issued by the Minister pursuant to ss (1). Direction 21 is the relevant Direction and it applies in the present application. The Direction must be applied and followed. Failure to do so is an error of law (refer Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 and Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; [2005] FCAFC 121).
69. Part 2 of Direction 21 applies in the present circumstance because Mr Morais does not pass the “character test”. Part 2 dictates the regard that must be had to specified matters in the exercise of the discretion when deciding whether a non-citizen should be permitted to remain in Australia. Three “primary considerations” are provided namely;
(a)The protection of the Australian community; and members of the community; and members of the community
(b)The expectations of the Australian community;
(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.
70. The first “primary consideration” namely; the protection of the Australian community and members of the community has a number of criteria which must also be considered and will be referred to below.
71. Direction 21 introduces this Part by recording that the Government is ‑
Especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
72. That criteria has particular relevance in the present circumstance because of the multiple convictions of Mr Morais with respect to possession and trafficking of a number of different types of drugs of addiction together with convictions for possessing money and property being the proceeds of crime. Additionally the sexual offences of indecent assault are crimes of violence and in so far as the 2003 conviction is concerned it was committed on a minor.
73. There is no doubt in my view that the offences for which Mr Morais has been convicted and sentenced are serious. The trafficking of drugs particularly heroin and amphetamines has caused extensive harm to members of the community and not just those who have used them. Lives have been ruined and members of the families of drug dependants have also suffered. It is no excuse that a person has trafficked in a drug of addiction in order to obtain drugs in kind to satisfy one’s own habit. Whilst it might constitute an explanation, the repetition of these offences by Mr Morais over many years involving four different illegal substances (heroin, ecstasy, amphetamines and cannabis) demonstrate to me an arrogance in the regard held by Mr Morais towards the law and other persons who have consumed the drugs that were provided to them by his trafficking. That Mr Morais sought to explain that he did not traffic drugs but rather was a courier does him no credit.
74. The sexual offences for which Mr Morais has been convicted and for which he pleaded guilty are also disgraceful, particularly in relation to the 2003 offence it having been committed on a child aged 14 years. Despite Mr Morais having pleaded guilty in the County Court, he did not demonstrate at the hearing in these proceedings, any sense of regret or shame or acknowledgement of the affect of his behaviour upon the victim.
75. In addition to the above offences Mr Morais also has multiple offences for crimes of dishonesty involving theft, handling and receipt of stolen goods, unlawful possession, obtaining property by deception and wilful damage. He has a conviction of threat to kill. He also has numerous driving offences.
76. The criteria within Direction 21 regards non-citizens who supply drugs as “extremely serious offenders” whether or not they are motivated by the supply for their own needs (2.6 (a)). It was Mr Morais’ case that he did not traffic for profit but there is evidence from the sentencing Judge’s remarks (page 50) that the convictions of 2004 arose out of the location of $2020.00 in cash at premises occupied by Mr Morais and in October 2002, he assisted in the sale of 10 ounces of amphetamines in return for the promise of a payment of $2000.00. Mr Morais, in my view, was a party to drug related crimes for financial gain which for reasons referred to earlier emerged from a “callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people” (2.6 (a)).
77. Mr Morais was convicted and sentenced on a number of occasions particularly with respect to the drug offences and more recently for the sexual offences. The latter sentences were particularly lengthy and clearly indicate the seriousness of the crimes as determined by the sentencing Judges. Those Judges also took account of Mr Morais’ prior criminal history. The crimes were particularly repugnant and would create widespread offence to many members of the Australian community.
78. Direction 21 provides that a person’s general conduct and total criminal history are relevant when assessing the risk of recidivism. In the case of non-citizens who have several previous convictions, the Direction requires that those persons be considered as having an increase risk of recidivism. Clearly, Mr Morais is a person who should be viewed as having a likelihood of repeating the conduct which has given rise to his numerous prior convictions.
79. It was submitted that I should find with confidence that Mr Morais would not re-offend in the event that he was released from gaol. That submission was put on the basis that Mr Morais has demonstrated a willingness to rehabilitate by reason of him having completed a number of programs within gaol. It was submitted that only by reason of the lengthy sentence currently being served that Mr Morais was able to qualify for entry into such courses. But Mr Morais has had many opportunities prior to his current sentence of entering into programs of rehabilitation when not imprisoned and has, for reasons which are unclear, not done so. Drug and alcohol type programs are not only available to prisoners in gaol. Such is the unfortunate prevalence of illegal drugs within the community and the consequent harm to persons that such programs are widely available without cost by a number of service agencies. Mr Morais should be given some credit for entering into programs in gaol but I would have been more impressed had he engaged in such programs at an earlier time and then of his own freewill.
80. It is equally difficult to find, or at least be satisfied, that Mr Morais will make a positive contribution to the Australian community upon his release. This is because of his appalling prior criminal history. Whilst Mr Ozerkan recorded in a statement at page 96 of the T‑documents that he would provide employment to Mr Morais upon his release, Mr Ozerkan was not called as a witness to these proceedings. Mr Ozerkan was recorded by Mr Morais as one of the witnesses he intended to call and it was learnt during the hearing that the telephone number for Mr Ozerkan was given to Mr Morais’ solicitors to allow his evidence to be given by telephone. No explanation was given as to why he was not called. An explanation was also not given why Ariel Hardovin was not called (refer paragraph 23). He offered to assist Mr Morais to find employment and was prepared to offer accommodation. I draw the inference in these circumstances that their evidence would not have been to the benefit of Mr Morais.
81. Ms Devenish apparently is sceptical of Mr Morais’ ability to not engage in criminal activity because she is not prepared to resume a day to day relationship with him for at least six months and then only if he demonstrates to her that he is drug free, is in employment and is earning an income. She is probably closer to Mr Morais than any other living person, yet she does not assume a degree of confidence that he will not return to his former pattern of conduct upon release.
82. The sentencing Judges clearly held a dim view of Mr Morais as evidenced by the transcript of sentencing on 15 April 2003 and 17 August 2004. The negative comments directed to the prospect of rehabilitation were of course made before Mr Morais entered into rehabilitation programs from which it would appear some positive outcomes have been achieved. I also note that Mr Jones, the industry supervisor at Barwon Prison has made favourable comments about his work performance.
83. On balance I would attach a great deal of weight under this part of Direction 21 to the offences committed by Mr Morais in the past and the nature of those offences. Consequently the affect upon other persons by those offences and the risk of recidivism also attracts considerable weight. I would give Mr Morais some credit for the programs that he has completed whilst currently serving a sentence in gaol but not so as to reduce by any significant degree the weight which I would attach to his prior behaviour and consequences.
84. In concluding this part, regard has been had to the comments and observations of sentencing Judges, particularly in so far as Mr Morais prior offences have affected other persons (refer Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441. I also note from the comments of the sentencing Judges that Mr Morais did plead guilty for which he was given credit when fixing sentence
expectations of the australian community
85. Direction 21 contains criteria with respect to the expectation as understood by the Government of the Australian community with respect to non-citizens who fail to obey Australian laws. It would be my view, irrespective of the criteria within this Direction, that removal from Australia of non-citizens would be expected where persons who have been allowed entry on trust have committed multiple crimes, repetitively, over a long period of time and where those crimes involve drugs, dishonesty and sexual offences.
86. In my view considerable weight should be attached to the criteria under this part of Direction 21.
the best interests of the child
87. Relevantly there are two children to be considered under this part. The first is Mr Morais’ own daughter, Sarah, who is presently 14 years of age. Mr Morais has not seen or heard of her since 1996. In documents lodged prior to the hearing and in his evidence at the hearing Mr Morais said that he sought the opportunity to locate her and reconcile his relationship. However in evidence, his first attempt to use other persons to locate her was in 2005. That is, nine years after he lost contact with her. I was unimpressed by that evidence. I would have thought that any genuine and committed attempt by him as a parent to locate his daughter and re-establish a relationship with her would have been made much earlier than last year. I have also some doubt concerning his evidence that he has not been able to locate Sarah since 1996. In a statement dated 19 August 2004 (pages 66 and 67), Mr Morais recorded Sarah’s address. He must have known, at least then, where she was living. He was then in prison and that information must have been provided to him by another person.
88. The other relevant child is Travis being the son of Laura Devenish. He was two years and nine months of age when Mr Morais commenced his current sentence. He has not seen Travis since November 2002 but has communicated with him from time to time by telephone. He and Travis have not exchanged letters or cards during his present incarceration. I have no doubt that Mr Morais would wish to have a relationship with Travis but I would not attach much weight at all to the considerations of Travis having an ongoing relationship with an adult male person with whom he has had no personal contact for almost three and a half years, who is not his father, with whom his mother is not prepared to immediately enter into a permanent relationship and being a person who has a dreadful criminal history. In the event that Mr Morais were to stay in Australia it may be over a period of time that he and Travis could develop an ongoing relationship. However at the present time, having regard to the age of Travis at the commencement of incarceration and the absence of Mr Morais from him, together with the absence of communication other than by telephone, that the nature of the relationship is presently of a kind that little adverse affect would be caused to Travis by Mr Morais’ absence from Australia. In concluding this part I attach little weight to the evidence of Ms Devenish with respect to her perception of the relationship between Travis and Mr Morais.
other considerations
89. Mr Morais has had a relationship with Ms Devenish in the past and they have continued to maintain a close association. However, she visited him once only in recent years and then only to discuss her evidence at these proceedings. That visit was for half an hour. There has been contact on a regular basis by telephone but not by correspondence or by exchange of birthday or Christmas cards. She has made a decision, to which Mr Morais has agreed, not to enter into a day to day relationship with him upon his release until he demonstrates to her that he is drug free and in employment and earning an income. On the one hand that demonstrates a soundness of judgment to ensure that she does not enter into a relationship, as she did previously with him, where criminal activity continued which necessarily had an adverse affect upon their relationship and upon Travis. On the other hand it does also demonstrate an absence of confidence on her part that such prior conduct will not be repeated. I would acknowledge that the relationship with Ms Devenish is of considerable importance to Mr Morais and that she is the person to whom he is closest. However, despite the concluding sentence of her statement of 23 August 2004, she said in evidence during these proceedings that in the event of deportation she would not travel to Portugal. That decision apparently was made in the interests of the stability of her relationship with Travis and in order to have ongoing access to her daughter, Katie.
90. Mr Morais also has a relationship with the Peric family which has involved telephone communication at a degree greater than the telephone communication he has had with Ms Devenish. Perhaps that is related to Mrs Peric and her daughter regularly paying $120.00 into his telephone account, that is, he may feel a sense of obligation, but I would acknowledge that there appears to have been a relationship between Mr Morais and the Peric family in the past where he is regarded by them in considerable esteem. I thought the evidence of Miss Peric during the hearing was puzzling to the extent that whilst acknowledging that he does have a dreadful criminal history, she was prepared, in large part to ignore it because he had not offended against her or her mother. Miss Peric also held Mr Morais in high regard because of the support that he had given her father, particularly prior to his death last year.
91. Some weight should be given to the friendship between Mr Morais and Ms Devenish and the Peric family but not so as to overwhelm the weight which I previously attached to those matters decided earlier.
92. I note the frequent references made by Mr Morais in his letters to the Minister prior to the hearing (refer earlier) and in his evidence to be taken on trust that he would not re-offend upon release. But I cannot overlook that there have been a number of occasions where he was put on trust by sentencing Courts and failed to honour. I note he has breached an intervention order, an intensive corrections order and a suspended sentence. The convictions in 2004 arose out of conduct committed whilst on parole. Mr Morais has also been convicted of driving whilst disqualified. The latter offence may appear petty compared against his other convictions but it also demonstrates a disregard or disrespect of a decision made by a Magistrate, apparently to cancel his motor car licence.
93. In the above circumstances I could not be satisfied that Mr Morais would obey Australian laws, and not re-offend.
94. I would acknowledge that Mr Morais has no remaining family in Portugal save for two sisters from whom he apparently is estranged. I would acknowledge also that work opportunities in Portugal are limited and he may find it difficult to exploit his trade skills. I do not accept his evidence that he no longer speaks the Portuguese language nor do I accept that he would find it difficult to assimilate into the Portuguese community.
95. Mr Morais was 19 years of age when he left Portugal, after completing his apprenticeship to come to Australia. He is not of a status that would permit him to be regarded as having been absorbed into the Australian community or attracting the matters considered by the Full Federal Court in Nystrom. That was an application involving a person who arrived in Australia at 27 days of age and who came to the attention of the Minister when he was 30. Mr Morais has lived more than half of his life in his native Portugal where he remains a citizen. Rather than being absorbed into Australia, I think that Mr Morais has lived on the fringe as indicated by the frequency of his criminal conduct and consequent periods of incarceration. By him returning to Portugal he is not leaving parents or siblings. He will be able to communicate in the Portuguese language and whilst I would acknowledge that there would be some degree of hardship by returning to Portugal, the overwhelming weight of the prior criminal conduct in Australia has been so abhorrent that on balance the visa permitting him to reside here should be cancelled.
96. In all of the circumstances I am satisfied that the decision under review should be affirmed.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 8 May 2006
Date of Decision 12 May 2006
Counsel for the Applicant Mr K Kappadath
Solicitor for the Applicant Mr P Dinning
Solicitor for the Respondent Ms B McNeil
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