Narayan and Minister for Immigration and Citizenship
[2008] AATA 402
•16 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0766
GENERAL ADMINISTRATIVE DIVISION ) Re RAJINESH NARAYAN Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date16 May 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION & CITIZENSHIP – Subclass 444 (Special Category) (Class TY) visa – applicant residing in Australia since 1995 – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No 21 – primary and other considerations – very serious offences – risk of recidivism – prospects of rehabilitation – decision under review affirmed.
Migration Act 1958 ss 499(2A), 501(2), 501(6)(a), 501(7)(c)
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] 57 ALD 257
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Lam v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 445
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505REASONS FOR DECISION
16 May 2008 Senior Member R W Dunne 1. The applicant in this case is Rajinesh Narayan (“applicant”), who is 23 years of age. On 8 February 2008, a delegate of the Minister for Immigration and Citizenship decided that the applicant had not satisfied him that he passed the character test, and the delegate exercised the discretion, pursuant to s 501(2) of the Migration Act 1958 (“Act”), to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of the delegate’s decision.
2. At the hearing, Dr Steven Churches appeared on behalf of the applicant and Mr Paul d’Assumpcao appeared on behalf on the respondent. The G documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence as Exhibit R1.
issue for the tribunal
3. Under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c) is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. The applicant was sentenced to imprisonment for terms exceeding this period on 19 May 2005, 6 March 2007 and 26 October 2007. In these circumstances, he is not able to successfully challenge the delegate’s decision that he did not pass the character test. The question then arises whether to exercise the discretion conferred by s 501(2) of the Act to cancel the applicant’s visa. The only issue before the Tribunal is whether this discretion should be exercised.
legislation
4. The Act relevantly reads as follows:
“499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
…
501 Refusal or cancellation of visa on character grounds
…
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
Otherwise, the person passes the character test.
…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
…”
evidence
Background Evidence
5. The applicant was born in Fiji in 1985. His parents separated before the applicant was born. He moved with his mother to New Zealand in 1990 and he became a New Zealand citizen. He arrived in Australia with his mother in 1995, at the age of 10. From the psychological reports prepared by Dr Carol Cayley, Consulting Psychologist on 20 November 2006 (Exhibit R1, pages 96-108), and by Dr Jack White, Registered Psychologist dated 5 May 2005 (Exhibit R1, pages 144-151), the applicant has a younger step-brother, two younger half-brothers aged 12 and 15 who live with their father and a younger half-sister aged 3 who lives with the applicant’s mother. When he came to Adelaide, the applicant attended Karrendi Primary School in years 6 and 7. He attended Parafield Gardens High School in year 8, but was expelled when he assaulted the Deputy Principal. He then attended Croydon High School, but was expelled for chasing fellow students with a machete. He began drinking alcohol on an occasional basis when he was aged 11, and was drinking on a regular basis by the age of 13. He began using marijuana at the age of 11 and at one time was consuming approximately one ounce of marijuana per week. He was using methamphetamines by the age of 12 and, between the ages of 14 and 16, his usage of this drug was very heavy and on a daily basis.
6. The applicant began offending when he was aged 14 and was convicted of a number of criminal offences between 2000 and 2007. The following is a summary of the offences, prepared by Mr d’Assumpcao and which was not challenged by Dr Churches. At the end of the summary is the last offence committed by the applicant, which has been inserted for completeness.
No
Court Date
Court
Offence
Offence Date
Outcome
1
08/12/1999
Youth Court of South Australia
1. Larceny
22/10/1999
Agreed formal caution
2
30/03/2000
Youth Court
1. Carry offensive weapon
15/1/2000
Agreed formal caution
3
30/03/2000
Youth Court
1. Larceny
2. Carry offensive weapon
28/01/2000
28/01/2000
Agreed 4 month undertaking for both counts
4
30/03/2000
Youth Court
1. Larceny
08/02/2000
Agreed 4 month undertaking
5
30/03/2000
Youth Court
1. Carry offensive weapon
12/02/2000
Agreed formal caution
6
08/03/2000
Youth Court
Carry offensive weapon
07/03/2000
Without conviction – costs only
7
24/03/2000
Youth Court
1. Unlawful possession
2. Carry offensive weapon
3. Possess equipment to administer cannabis
10/03/2000
10/03/2000
10/03/2000
1. Without conviction, 12 month obligation
2. Without conviction, without penalty
3. Without conviction, without penalty
8
02/05/2000
Youth Court
1. Drive or use motor vehicle without consent
2. Possess equipment to administer cannabis
3. Larceny
27/03/2000
27/03/2000
27/03/2000
1. Drivers licence disqualified for 12 months
2. Without conviction
3. Convicted – without penalty
9
02/05/2000
Youth Court
1. Drive or use motor vehicle without consent
2. Fail to comply with bond agreement
3. Fail to comply with bond obligation
31/03/2000
31/03/2000
31/03/2000
Convicted on all 3 counts
Drivers licence disqualified for 12 months
10
02/05/2000
Youth Court
Interfere with motor vehicle without consent
09/04/2000
Without conviction – 12 month obligation
11
20/06/2000
Youth Court
Fail to comply with bond obligation
19/05/2000
Without conviction – levy only
12
30/10/2000
Youth Court
1. Robbery in company
2. Fail to comply with bond obligation
3. Larceny
4. Fail to comply with bail agreement
5. Carry offensive weapon
6. Fail to comply with bond obligation
7. Carry offensive weapon
8. Possess housebreaking implement
9. Fail to comply with bond obligation
10. Carry offensive weapon
11. Fail to comply with bail agreement
12. Larceny
07/07/2000
07/07/2000
27/06/2000
25/08/2000
21/06/2000
21/06/2000
28/05/2000
28/05/2000
28/05/2000
02/08/2000
02/08/2000
01/07/2000
Convicted on all 12 counts
Sentenced to 5 months detention for counts 1-12
13
28/03/2001
Youth Court
1. Interfere with motor vehicle without consent
2. No licence
3. Fail to comply with bond obligation
30/07/2000
30/07/2000
30/07/2000
1. Drivers licence disqualified for 12 months
2. Levy only
3. Levy only
14
28/03/2001
Youth Court
1. Carry offensive weapon
2. Possess housebreaking implement
3. Possessing
17/02/2001
17/02/2001
17/02/2001
Convicted on all 3 counts – levy only
15
28/03/2001
Youth Court
1. Armed robbery
2. Possess object with intent to damage property
23/02/2001
23/02/2001
1. 11 months detention
2. Convicted without penalty
16
25/07/2002
Youth Court
1. Armed robbery
2. Armed robbery
3. Carry offensive weapon
01/06/2002
01/06/2002
05/02/2002
Sentenced to 10 months detention for all 3 counts
17
20/11/2003
Sandgate Magistrates Court (MC)
Possession of a knife in a public place
18/10/2003
Fine $180
In default – 3 days imprisonment
18
24/11/2003
Brisbane MC
1. Travel on railway without first paying fare
2. Possess tainted property
20/11/2003
10/11/2003
1. No conviction recorded
2. Fine $300
In default – 10 days imprisonment
19
28/11/2003
Brisbane MC
Unauthorised dealing with shop goods
30/10/2003
Fine $200
In default – 4 days imprisonment
20
26/12/2003
Brisbane MC
1. Travelling without paying fare
2. Wilful damage to property without consent causing loss
3. Possess graffiti instrument
4. Wilful damage
5. Contravene direction or requirement
6. Breach of bail undertaking
30/11/03
29/11/2003
29/11/2003
28/12/2003
04/12/2003
23/12/2003
Charges for wilful damage.
Restitution $150
In default – 2 months imprisonment
Restitution $327
In default – 2 months imprisonment
21
06/01/2004
Holland Park MC
Unauthorised dealing with shop goods
10/12/2003
Fine $200
In default – 4 days imprisonment
22
27/07/2004
Elizabeth MC
Dishonestly take property without owner’s consent
19/02/2004
Fine $100
23
29/03/2004
Adelaide MC
Fail to comply with bail agreement
22/02/2004
Convicted – without penalty
24
29/03/2004
Adelaide MC
Fail to comply with bail agreement
22/03/2004
Convicted – without penalty
25
29/07/2004
Elizabeth MC
Estreatment of bail
29/07/2004
Found proved estreatment $500
26
17/08/2004
Adelaide MC
1. Disorderly behaviour
2. State false personal details
16/08/2004
16/08/2004
Both counts, convicted without penalty – costs only – time spent in custody taken into account
27
17/09/2004
Adelaide MC
1. Estreatment of bail
17/09/2004
Found proved estreatment $100
28
19/05/2005
Pt Adelaide MC
1. Drive or use motor vehicle without consent
2. Drive in reckless or dangerous manner
3. Duty to hold licence or learner’s permit
5. Interfere with motor vehicle without consent
6. Dishonestly take property without owner’s consent
7. interfere with motor vehicle without consent
8. State false personal details
9. Fail to comply with bail agreement
18/10/2004
18/10/2004
18/10/24004
18/06/2004
20/02/2004
10/04/2004
10/04/2004
10/04/2004
1, 5-7: 18 months imprisonment
NPP 8 months.
Drivers licence disqualification 12 months
2. Fine $300 drivers licence disqualified for 6 months
3, 8-9 levy only
29
20/12/2006
Adelaide MC
1. Fail to comply with bail agreement
2. Fail to comply with bail agreement
3. Fail to comply with bail agreement
10/03/2006
13/03/2006
28/07/2006
All discharged without penalty – costs only
30
06/03/2007
Adelaide MC
1. Interfere with motor vehicle without consent
2. Possess article to commit offence
3. Unlawful possession
4. Interfere with motor vehicle without consent
5. Possess article to commit offence
6. Fail to comply with bail agreement
7. Drive or use motor vehicle without consent
8. Drive under disqualification
9. Interfere with motor vehicle without consent
10. Dishonestly receive property without owner’s consent
11. Drive or use motor vehicle without consent
12. Duty to hold licence or learner’s permit
13. Unlawfully on premises
14. State false personal details
05/07/2005
05/07/2005
05/07/2005
07/03/2006
07/03/2006
07/03/2006
01/10/2005
01/10/2005
07/10/2004
07/10/2004
02/08/2006
02/08/2006
02/08/2006
02/08/2006
Convicted on all 14 charges
2 years imprisonment
31
26/10/2007
Adelaide DC
Escaping from custody
15/06/2007
Convicted
15 months imprisonment
Evidence of the Applicant
7.
In examination, Dr Churches referred the applicant to his letter dated
23 August 2007 (Exhibit R1, page 45), which he had forwarded in response to the notice of intention to cancel his visa, issued by the respondent. The applicant affirmed all the things he had written in the letter, except that he had since broken up with his girlfriend. He had last seen his mother in around November 2007, when she came to visit him with his baby sister (Bonnie) at Yatala Prison. He said he first realised he was not an Australian citizen when he received the cancellation notice from the respondent. Up until then, he thought he was an Australian citizen. In cross-examination, Mr d’Assumpcao referred the applicant to his 23 August 2007 letter to the respondent, where he stated that all his crimes had been “motor vehicle and petty theft-related”. When questioned further by Mr d’Assumpcao, he admitted that some of the offences were serious and then went on to say:
“But they were all juvenile offences, except for the escape custody. … I think my juvenile was serious, but my adult is not so serious.” [Transcript, page 27]
8. The applicant said he had been involved in the Drug Court program, but did not complete it. Whilst on the program, he had been sentenced to a term of imprisonment, where the sentencing Magistrate had made the following comments (Exhibit R1, page 110 at paragraphs 4 and 7):
“I note that these offences were committed whilst you were on parole and the last of the offences was committed when you breached your home detention bail and absconded and whilst you had been on the Drug Court program. … You are not going to get any credit for your time on the Drug Court program. It was a waste of time for you. …”
He had been on the Drug Court program for 6 weeks when he started drinking spirits heavily. On that occasion, when drinking, he had committed offences. He admitted that he usually offended when he was drunk, but only realised the consequences when he sobered up and had been arrested. He had not been drinking when he escaped from custody (in June 2007), but had done so because it was his friend’s idea to escape and he did not want to be considered weak.
9. The applicant said there were times when he had used motor vehicles without consent because he thought it was “fun”. He said he did not think that committing armed robberies was “fun”. However, he admitted that he might have said, but did not think he would have meant, comments that were attributed to him in a Parole Report dated 2 July 2007. The Report said (Exhibit R1, page 159 at paragraph 5):
“… Whilst Mr Narayan understood that the victims of his offences were justified in feeling angry and upset about his behaviour, he minimised this impact demonstrating a lack of empathy and insight into his offending behaviour. This void was made clear when he said that committing armed robberies was ‘fun’. …”
10. When asked by Mr d’Assumpcao about the armed robberies, the applicant said that he just wanted to see if the victims would give him their money. The first armed robbery was committed in 2001. He had been sitting in a park in O’Connell Street, North Adelaide and had been drinking. He had a crowbar and approached the victim, who had been walking past. He brandished the crowbar, threatened the victim and robbed him. He then went to a nearby shop and bought food. He was arrested halfway down the street. When asked whether he thought what he had done was serious, the applicant said:
“ Well, it was serious but, no, it’s not like I walked into a shop with a gun or anything.”
11. The applicant was asked about two further counts of armed robbery he committed in 2002. He said that he and his friend had taken the hats and wallets from two victims. He was drunk at the time and had hit one of the victims with a hollow steel pole that he had hidden up his sleeve. The victims had been at a skate park on North Terrace and he had reacted because one of them had made racist comments to him. He said he had found the pole and decided to keep it in case there was any trouble. When asked again about the incident with the crowbar in 2001, he said he did not carry that weapon in case of trouble. He had used it to break into games machines and steal the money inside them.
12. The applicant said that most of his offending had occurred because of drugs, alcohol and peer pressure. He said that when he was released on parole, he would be moving to Mount Gambier to stay with a friend. The friend worked in the meat works there, did not have a criminal record and was not a serious drinker. He would smoke a little marijuana. The applicant said that he himself had been smoking marijuana in prison, but did not have access to alcohol there. He still drank and smoked marijuana at the same time and admitted he had a serious alcohol problem. He had attended a two hour session at an alcohol and other drugs intervention program in prison in September 2007. He had also been to various counselling sessions when he was on the Drug Court program. He said he did not take much from the intervention program because he already knew much of what was said in the session. Because they were not run in prisons, he said he was not able to be involved in Victims’ Awareness courses.
13. In further cross-examination, the applicant said that he had been engaged in high speed chases with police. He had been travelling at speeds of 160 km per hour in suburban areas and on main roads. He said he had been drinking at the time and was “pretty tipsy”. He said that, to him, “tipsy” was anything where you were not stumbling around. He did not think 160 km per hour was really fast because, “I know I can drive”.
14. When he was released on parole, he said he should be able to get a job easily with Dave Rogers at Marion, but admitted that there was no certainty a job would be available when he was released. In regard to the relationship with his mother, who lived in New South Wales, he tried to ring her from prison every week. He was limited to 10 minute phone calls and would speak to both his mother and his half-sister, Bonnie. He would sometimes speak to his half-brothers, Alex and Shane, when they were visiting his mother. She used to visit him every two or three months, before he had been transferred to Port Augusta, and the last time was about October/November 2007. He had sent his mother money in the past, but the last time had been in 2005.
Evidence of Dr Carol Cayley, Consulting Psychologist
15. Dr Churches referred Dr Cayley to the psychological report on the applicant that she wrote in November 2006 (Exhibit R1, pages 96-108) and she confirmed that it was a correct statement of her professional opinion. In cross-examination by Mr d’Assumpcao, Dr Cayley said that the recommendations in the report were to assist the applicant in the future. She said she had had regard to the report provided by Dr Jack White (Exhibit R1, pages 144-151) in recommending that the applicant should complete some “stop, think, do” courses on anger management and drug and alcohol intervention. She had reported change in his cognitive functioning that suggested he had actually improved to some extent. She attributed the improvement to possibly less alcohol and drugs. However, because the applicant had been in custodial settings where very strict structure had been imposed, or when released had had no assistance to develop that structure himself, he lacked the skills that were needed to develop self control. When referred by Mr d’Assumpcao to the escape from custody offence on 15 June 2007, she said she was unsure of what of her recommendations had actually been put in place. She said that, although the applicant had been eligible for parole within around 13 weeks of his escape from custody, he had not adopted the “stop, think, do” approach at that time. There had been an improvement in his ability to process information and the next step was for him to use that information to predict consequences of actions. The applicant would still need training in learning and additional support to achieve that. She said it appeared the programs recommended by Dr White had not been implemented and she did not know why that was the case. She said that one of the difficulties for people who re-offend was that they had a lot of free time and not very much to do in that time that was constructive. In the applicant’s case, he would need a structured plan that would be working towards employment or training, so that he did not have a lot of spare time to begin with. As she had not assessed the applicant since November 2006, Dr Cayley said that she was not in a position to give an opinion on the likelihood that he might re-offend.
Evidence of applicant’s mother (Shanta Roe)
16. Dr Churches referred Ms Roe to her undated letter in the G documents (Exhibit R1, page 134). She said she was unable to remember to whom she had sent the letter. She had visited her son whilst he had been in prison but, because of distance, she had been unable to visit him at Cadell and at Port Augusta. She said her health was not very good. She had high cholesterol and needed to control her diabetes. She said she really did not know the applicant once he turned 18 and did not have a good relationship with him because he was always in prison. However, she needed her son and could not let him go to New Zealand because there was no-one there for him if something happened. If he was in Australia, she knew how she could find him.
17. In cross-examination by Mr d’Assumpcao, Ms Roe said she had last visited the applicant for 3 days in November 2007. She had to wait for someone to bring her to Adelaide so she could go to Yatala Prison. She had been in Sydney for two years and the last time she had visited the applicant previously had been at Easter in 2006. She was only able to see the applicant once a year because she could not afford to visit him more often. She said her son was in prison because he did not have a father to bring him up and because her marriage to his father had broken up before the applicant was born.
consideration of ministerial direction no 21
18.
By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion to cancel the applicant’s visa, the Tribunal must take into account, as a guide in making its decision, Ministerial Direction No 21 (“Direction”), which the Tribunal is bound to follow: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] 57 ALD 257. The Direction was made by the Minister pursuant to
s 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. Paragraph 2.2 of the Direction provides that decision-makers must have regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
19. Before considering the Direction, there is no dispute that the applicant had failed the character test under s 501(6)(a) because of his substantial criminal record (s 501(7)(c)). He had been sentenced to terms of imprisonment of 12 months or more on more than one occasion. The relevant considerations in the Direction will be addressed in turn by the Tribunal in the following paragraphs.
20. The three primary considerations in the Direction are expressed as follows:
(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.
First Primary Consideration – Protection of the Australian Community
21. In considering the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
22. Seriousness and Nature of the Conduct The first of the three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). In relation to this factor, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)) and to take into account any relevant mitigating factors (paragraph 2.8(a)).
23. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The examples include:
(a) armed robbery (including robbery involving the use of imitation weapons), home invasion; and
(b) any other crimes involving violence or the threat of violence.
24. The applicant was convicted of armed robbery in the Youth Court on 28 March 2001 and 25 July 2002, for which he received sentences of detention of 11 months and 10 months respectively. As has been said in paragraph 22 above, the Tribunal must take into account the sentence imposed for the crime(s) and the extent of the non-citizen’s criminal record, including the number and nature of the offences and the time between offences. In his opening, Dr Churches submitted that the worst of the applicant’s behaviour was committed at an earlier stage in his life and that this should somehow be viewed as a mitigating factor. As was submitted by Mr d’Assumpcao, the applicant was convicted on three counts of armed robbery, which is a very serious offence under the Direction. He also has a lengthy record that shows his serious offending started early in 2000, and the prison sentences imposed indicate the seriousness with which the Courts have viewed his conduct. He spent significant periods as a youth in detention and, as an adult, has spent increasing periods in prison for his conduct, culminating in recent sentences of 2 years and 15 months imprisonment. The number and extent of the offences were, in the Tribunal’s view, serious and must be viewed as such within the context of the protection of the Australian community and members of the community.
25. Having considered the applicant’s criminal history and the sentences imposed, the Tribunal must take into account any mitigating factors that are relevant to his offending behaviour. This, the Tribunal has found hard to do. The applicant has suffered with ongoing problems involving drugs and alcohol. However, as Mr d’Assumpcao submitted, he has failed to avail himself of the opportunities that have been provided to redress or rehabilitate him from the substance abuse from which he suffers. He has tried to minimise the opportunities to engage in various intervention courses because, as he said in his evidence, he already knew everything that was dealt with at the courses. Moreover, he had little success in his involvement in the Drug Court program because, as was said by Magistrate Grasso at the time, it was a waste of time for him.
26. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in the Direction (paragraph 2.5) is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). As expressed in paragraph 2.10 of the Direction, it is the Government’s view that the non-citizen’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
27. The applicant’s general conduct and criminal history have been referred to by the Tribunal earlier in these reasons. It is clear from his evidence that he has a jaundiced view of what conduct is acceptable and what is not. Dr Churches himself recognised this in his closing address when he said:
“He seems at present to think that armed robberies come in a variety of shades from green through to red and that high speed chases at 160 k in the suburbs are fine as long as nobody gets killed.” [Transcript, page 59]
The applicant is now 23 years of age and there is every indication that his past offending conduct may be repeated. He said that he has taken drugs in prison – heroin and marijuana – although the last test a few months ago was negative. However, this is not the case of a man who has rehabilitated himself from drug abuse. In her evidence, Dr Cayley said that the applicant needed extensive structures to be put in place to enable him to be trained in the skills necessary to predict consequences of actions. In other words, to enable him to adopt a “stop, think, do” approach in the way he conducted his life. However, as Mr d’Assumpcao submitted, there is no evidence that the structures can be put in place and that the training will be available. The applicant said that employment would be available to him in Adelaide through Mr Dave Rogers. However, he also said that he wanted to go to Mount Gambier to live with a friend who was working there, and who was not a serious drinker or drug user. Here, there is an obvious inconsistency in what the applicant intends to do and where he intends to go upon his release. In any event, the likely parole restrictions that would be imposed upon him mean that he would remain exposed to the company of friends or peers who had similarly taken drugs and committed offences of the type committed by the applicant in the past. In these circumstances, there is the real risk that he will re-associate with these past friends or peers and will continue to offend.
28. In its statement of facts, issues and contentions, the respondent has referred to the fact that the applicant had been convicted of having breached bail on approximately 18 occasions and, most recently, had breached parole 18 days after being released. The Tribunal is in no doubt that these statistics are correct. In addition, the report from the Department of Correctional Services dated 2 July 2007 (Exhibit R1, page 163) states that the applicant’s imprisonment in Yatala Prison “has been problematic, with him having to be reminded about prison rules on a regular basis”. The applicant’s mother, with whom he now maintains only telephone contact, resides in New South Wales and, as a result, there is no evidence that he will be released into a stable environment. As has been already adverted to, the environment into which he is likely to be released will include friends or peers who are mostly drug and/or offending associates.
29. Having regard to all of the matters referred to above, the Tribunal finds that there is a significant risk of recidivism.
30. General Deterrence The third factor relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the applicant’s visa may prevent or discourage offences by other persons (paragraph 2.5(c) of the Direction). In the Tribunal’s view, it is unlikely that wide publicity would be given in the media to the cancellation of the visa in the present case. If the cancellation of the applicant’s visa is confirmed, that will presumably become known to his friends and acquaintances, and may provide some deterrence to other persons. Moreover, visa cancellation would enable the respondent to point to a possible precedent in other similar cases. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has about very serious crimes, such as armed robbery. In this regard, the Tribunal notes the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed. In the final analysis, there is no evidence that the general deterrence effect would be significant if the cancellation of the applicant’s visa was confirmed, and the Tribunal attaches little weight to this aspect.
31. Having had regard to all of the factors relevant to the first primary consideration, the Tribunal considers that this consideration would indicate that the applicant’s visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
32. The second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases:
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
The Tribunal also takes into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
33. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. As Dr Churches said in his closing, the applicant simply has no idea of acceptable behaviour and thinks that acceptability is all relative. This became abundantly clear to the Tribunal when it asked the applicant what he thought the average person in the street would think of his conduct. The applicant said:
“Well, you look at the way I – this is how I see it. My armed robberies and that, they were nothing they were just silly little things really but, you know, you get people go into shops and that, people get shot and that – that is a proper armed robbery. Mine was just stupid. And car thefts and that. I’ve only ever got into high speed chases and no one got hurt and that, so they even weren’t that serious to me. Whereas as I see in other car crashes – people have crashes, people die and this and that.” [Transcript, page 46]
34. There may be some compassion in the community for the applicant’s circumstances, especially because of the conditions of his upbringing and his alcohol and drug abuse for considerable periods of time. However, the Tribunal does not accept that the Australian community would allow or condone a non-citizen to remain in the community where that person considered it acceptable to carry offensive weapons with them in the event that they might be needed. Moreover, the Tribunal does not accept that the Australian community would allow or condone a non-citizen to remain in Australia where that person considers driving at 160 km an hour, while effectively drunk, and engaging in a high speed chase with the police, to be acceptable conduct.
35. The Tribunal considers that the Australian community would be very concerned that a non-citizen should engage in offending of the kind and extent committed by the applicant and with the attitude of mind displayed by him in giving his evidence. In all of the circumstances of the applicant’s case, the Tribunal considers that the Australian community would, on balance, favour the cancellation of his visa.
Third Primary Consideration – Best Interests of a Child or Children
36. The third primary consideration requires that the best interests of the child or children be considered. It was Mr d’Assumpcao’s submission that, although there were half-brothers and a half-sister of the applicant involved, these were not relevant in the consideration of the third primary consideration because there was no evidence of a parental or other close relationship involving the applicant. When questioned by the Tribunal about the applicant’s relationship with his half-sister, Bonnie, Mr d’Assumpcao submitted that the words “other close” in paragraph 2.3(c) of the Direction were qualified by the word “parental”. The operation of paragraph 2.3(c) was considered by Lander J, in the Federal Court, in Lam v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 445 where, at paragraph 83 he said:
“83. Because Ministerial Direction No. 21 identifies the class of children whose best interests are required to be a primary consideration in the decision making process, an applicant cannot have a legitimate expectation that the best interests of any other child or children not within that class would be the subject of an assessment by the decision maker considering the application generally. No such legitimate expectation can arise when the Ministerial Direction identifies precisely those children whose best interests must be assessed in the decision making process.”
There needed to be a significant influence by the applicant on Bonnie’s life and, on the evidence, there was nothing to suggest that such an influence existed. The applicant had only seen his half-sister on a few occasions, since she was born, and had spoken to her only briefly during telephone conversations with his mother. In the circumstances and having regard to what Lander J said in Lam, the Tribunal does not find this consideration to be relevant in the applicant’s case.
Other Considerations
37. The Tribunal now refers to such of the other considerations included in paragraph 2.17 of the Direction as are relevant to the present matter. In doing so, the Tribunal takes into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
38. The Tribunal refers to the analysis of Deputy President Jarvis in Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505, and adopts the conclusion at [54] of that decision that, whilst the Direction provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; and in particular, one or more of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
39. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. The applicant has no business and other ties to the Australian community. The disruption to the family would be to the applicant’s mother. Although she would like to develop a relationship with her son, she has not been able to do so because, as she said, “he was always in prison”. The applicant has maintained telephone contact with his mother, but she has only been able to visit him once a year, and not at all whilst he has been in the prisons at Port Augusta and Cadell. The applicant has also provided his mother with little financial support. In the circumstances, there will be no great disruption to the applicant’s family, other than emotional disruption.
40. Paragraph 2.17(b) deals with genuine marriage or de facto or interdependent relationships involving the applicant. The Tribunal is satisfied that paragraph 2.17(b) is not presently relevant.
41. Paragraph 2.17(c) refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependant on the non-citizen for support which cannot be provided elsewhere. The factors relevant here have been considered above in respect of paragraph 2.17(a). Additionally, there is the question of whether the immediate family members are able to travel overseas to visit the non-citizen. In the present case, there is no evidence to suggest that Ms Roe would be unable to travel overseas to visit her son. Her evidence is that she has limited financial means, but may be in a position to travel overseas on only infrequent occasions. Moreover, there is no evidence that immediate family members would be dependent on the applicant for support which could not be provided elsewhere.
42. Paragraph 2.17(d) of the Direction requires the Tribunal to consider the composition of the non-citizen’s family, both in Australia and overseas. The Tribunal has already referred to the position of the applicant’s immediate family in Australia. Other than his father, who he does not know and is in Fiji, the applicant has no family in New Zealand.
43. The final relevant consideration under this heading is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). As was submitted by Mr d’Assumpcao, the most recent evidence of rehabilitation is the applicant testing positive to drugs in prison. Other than that, the evidence of Dr Cayley was that there had been change in the applicant’s cognitive functioning that suggested some improvement, which was due to less alcohol and drugs. However, she acknowledged that extensive structures needed to be put in place to enable him to be trained to develop the skills for further improvement. There was no indication of any such improvement in the manner in which he gave his evidence, and any remorse for what he had done and the consequences he had caused his victims was simply absent. This was emphasised even more in the words of Wilson J in the District Court when the applicant came before him, on 26 October 2007, for sentencing following his escape from custody. He said (Exhibit R1 at page 26):
“You have not been deterred (or achieved rehabilitation after receiving) a wide range of penalties and forms of correctional treatment, including warnings, bonds, detentions, fines, actual terms of imprisonment ranging up to nearly three years.”
conclusion
44. The Tribunal has had careful regard to the considerations set out in the Direction and to the evidence and submissions before it. After considering all of that material and to all relevant considerations in the Direction, the Tribunal has decided that it is appropriate to exercise the discretion under s 501(2) of the Act to cancel the applicant’s visa.
decision
45. The Tribunal affirms the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne.
Signed: .......Louise Staker........................................
AssociateDate of Hearing 4 April 2008
Date of Decision 16 May 2008
Advocate for the Applicant Dr Steven Churches
Elliott Johnston ChambersAdvocate for the Respondent Mr Paul d'Assumpcao
Australian Government Solicitor
0
4
0