Nemo (a pseudonym) and Minister for Immigration and Citizenship

[2012] AATA 263

[2012] AATA 263 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0801
Re	Nemo (a pseudonym)
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	4 May 2012
Place	Brisbane

Decision Summary

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Senior Member Bernard J McCabe

CATCHWORDS

VISA CANCELLATION – character grounds – primary considerations – best interests of the child – protection of the Australia community – unacceptable risk of harm – crimes against children – decision under review affirmed

LEGISLATION

Migration Act 1958

SECONDARY MATERIALS

Direction [No.41] – Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

Senior Member Bernard J McCabe

4 May 2012

1. The Minister for Immigration and Citizenship decided to cancel the visa of Mr Nemo, a New Zealand citizen, on character grounds. (“Mr Nemo” is not the applicant’s real name: because of the nature of the evidence in this case, he and members of his family and others who provided statements will be referred to using pseudonyms.) Mr Nemo does not dispute that he fails the character test in s 501 of the Migration Act 1953 but he asked the Tribunal to consider whether the discretion to cancel the visa should be exercised.

2. I am satisfied the Minister’s decision to cancel the applicant’s visa should be affirmed. I explain my reasons below.

   Background to the application

3. Mr Nemo migrated to Australia from New Zealand in 1989 when he was 21 years of age. He followed his step-mother and father and other siblings. (His step-mother has returned to New Zealand, but his biological mother now resides here. His father has died.) Mr Nemo was in trouble soon after he arrived: he was convicted of stealing and attempting to steal in August 1990, and attempted false pretences in 1991. Mr Nemo told the Tribunal he was unemployed and running with a bad crowd at the time. He said he was rescued from all that when he formed a relationship with Ms Smith, who resided in the same apartment complex. Ms Smith had two young children of her own. Mr Nemo moved in with the Smiths in 1992 or 1993.

4. During the mid-1990s, Mr Nemo began to sexually abuse Ms Smith’s daughter. The child was 7 years of age when the abuse commenced. The sexual abuse continued until the girl was 12 years of age. Mr Nemo also sexually assaulted one of the girl’s friends who visited the family home. The other victim was also under 16. It was unclear why the abusive relationship between the applicant and his step-daughter ended when it did; Mr Nemo suggested his conscience got the better of him. He put his behaviour down to an unhealthy interest in pornography, although I was told the pornography in question was freely available on DVD. It was not child pornography. Mr Nemo also referred to what he described as “bad attitudes to sex” which he developed as a young man.

5. The offending did not cease when the abusive relationship ended. Mr Nemo was also found guilty of stalking. The precise circumstances of the stalking offence were not entirely clear. Mr Nemo surmised the charges referred to his behaviour after 2000 when he would sneak around the house at night and peek in his step-daughter’s windows in the hope of her seeing her undress.

6. Ms Smith was unaware of any of this until her daughter disclosed the applicant’s behaviour to her sometime around 2007-2008. The relationship between Ms Smith and the applicant effectively ended as a result. The girl had approached the police to make a complaint about the applicant during that period. The complaint resulted in the applicant’s arrest and charges being preferred. Mr Nemo ultimately pleaded guilty to the following charges on 1 October 2010:

Court	Date	Offence	Court Result
Brisbane District Court	1 Oct 2010	Maintain Unlawful Relationship     With A Child	Imprisonment 5 years concurrent Order that the date the offender is eligible for parole be fixed at 01 April 2012
Indecent Treatment of Children     under 16 Child under 12 years           (3 charges)	On all charges: Imprisonment 12 months
Indecent Treatment of Child under     16 (Indecent film Etc) Child Under     12 Years Lineal Descendent/ Guardian/Carer (2 charges)
Indecent Treatment of Child Under    16 (Expose) Child Under 12 Years Lineal Descendent/Guardian/Carer
Sexual Assaults
Unlawful Stalking

1. The applicant was sentenced to 5 years in gaol on the “maintain relationship” charge and 12 months in gaol on all the other charges. He remains in custody. The question is what happens to him when he is released. Will he be paroled into the Australian community or should he be required to return to New Zealand?

2. Before the applicant was sent to gaol but after his relationship with Ms Smith had broken up, Mr Nemo commenced a new relationship with Ms Jones. Ms Jones has two teenage children from a previous relationship: a boy now aged 14 and a daughter who is now aged 15. Mr Nemo says he told Ms Jones about his offending. He lived with the Joneses for approximately eight months before he was taken into custody. He says he developed a good relationship with the young male. There is no suggestion that the relationship was inappropriate. Mr Nemo said he was able to act as a role model to a youth who was experiencing behavioural problems in the absence of his biological father. Mr Nemo said he was not as close to the teenage daughter of Ms Jones but said he still had a good and healthy relationship with her. Both of the children provided statements although I was not satisfied it was necessary or appropriate for them to give evidence at the hearing in view of their age. I was also told their father – who apparently does not know of Mr Nemo’s record – refused to agree that the children be given a passport, so it would be impossible for them to visit the applicant if he were deported to New Zealand.

3. I also received statement evidence from the applicant’s own daughter who continues to reside with her mother, Ms Smith. That child is now 13 years old. Mr Nemo said he has maintained close contact with his daughter for her entire life, and has a cordial relationship with his former partner. The child would be able to visit the applicant in New Zealand if it came to that.

4. Mr Nemo says he plans to live with his mother and sister if he is released into the community. In due course, when approval is obtained, he plans on returning to live with Ms Jones and her family.

   The primary considerations

5. Decision-makers (including the Tribunal on review) are required to refer to the considerations set out in Direction 41 – Visa refusal and cancellation under s 501. The Direction is signed by the Minister and provides authoritative guidance on how to exercise the discretion to cancel a visa on character grounds. The Direction identifies four primary considerations which must be examined before referring to other matters that might also be relevant. I will deal with the primary considerations first.

   Primary consideration one: protection of the Australian community

6. The first primary consideration refers to the need to protect the Australian community from unacceptable risks of harm. In making that assessment, the Direction requires that I consider the seriousness and nature of the conduct in question, and the risk that the conduct may be repeated.  

7. The Direction includes a number of examples of offences that are considered to be especially serious. Many of those involve violence. Mr Nemo has not committed crimes of violence but he has committed crimes against children, which are regarded as being very serious indeed. He abused a position of trust with respect to his step-daughter. The offences against her continued over a long period. As the sentencing judge put it in his remarks, the applicant effectively robbed her of her childhood: exhibit one at 68. Those sexual offences were compounded by the stalking offence. He also offended against another child.

8. Mr Nemo acknowledges the seriousness of the offences. I accept he is now genuinely sorry for what occurred. He says he has seen the impact of his behaviour on his step-daughter and other familial relationships. He says prison has been a sobering experience.

9. The applicant insists he has reformed. I accept there is no evidence of offending since the behaviour that gave rise to the stalking offence in around 2003. He obtained a trade qualification while he was in prison although he appears to have been engaged in reasonably steady employment from the mid-1990s in any event. That shows a commitment to self-improvement. I note his family members have indicated they wish to provide him support if he is permitted to stay. That is encouraging. But it is unclear whether he has developed the sort of insight into his offending that would help him avoid falling back into his old ways when faced with temptation.

10. Mr Nemo blames a steady diet of pornography and bad attitudes towards sex that developed early in life for what occurred. Interestingly, he said he really only came to appreciate the magnitude of his crimes once he began the treatment program offered to sex offenders in prison. That program commenced several months ago. He expects to complete it by June. He says it has been of enormous assistance in understanding what went wrong – although it is surprising that he did not appreciate the problem while he was offending, or at the time he was arrested and prosecuted. In any event, he says he is confident the insights he is developing into his own behaviour will enable him to control his behaviour in the future. He referred to at least one example (albeit that it pre-dated the commencement of the program) where he was placed in a position with respect to a young female where he recognised he might be tempted – and responded by sending the young female away so he could avoid the occasion of sin, as it were. I note he has also made arrangements to see a psychologist upon his release from prison if he is allowed to stay. I was told the psychologist has experience in dealing with sex offenders.

11. Mr Nemo candidly acknowledged in his evidence that there was always a risk of further offending although he added he was confident he would never do it again. At one level the fact Mr Nemo acknowledges a risk is encouraging: it would be even more troubling if he were in denial about the risk. He says he has cut back on his consumption of pornography (most obviously because he is in gaol) although it must be said there is no objective evidence that consumption of pornography contributed to his offending in the first place. He says the sex offenders’ program is working. That is all encouraging, but I have not been provided with any independent evidence from a psychologist or other expert who could reassure me that the applicant had changed his ways.

12. I am satisfied there may be only a low to moderate risk of the applicant re-offending. He has developed some insight into his behaviour, and – with further support from a psychologist and his family network – there is a reasonable chance he will not re-offend. But given the seriousness of the conduct in question, the Australian community is entitled to be cautious, if not sceptical. I think the first consideration weighs heavily against the applicant and in favour of cancellation.

    Primary consideration two: whether the person was a minor when he began living in Australia

13. The applicant was 21 years of age when he first entered Australia. He was not a minor. This consideration does not assist him.

    Primary consideration three: the length of time the applicant was resident before he committed offences

14. Mr Nemo has resided in Australia continuously since 1989 but he committed his first offence shortly after he arrived in this country. While he has developed some ties with the Australian community since those offences, the focus of this primary consideration is different. It refers to the amount of time that has lapsed between entry and first conviction. Since his offending began soon after he arrived, this consideration does not favour the applicant. Indeed, it counts against him.

    Primary consideration four: international obligations

15. Australia is a signatory to a number of international agreements that may create obligations. In this case, decision-makers are obliged to consider the best interests of any children that might be affected by the decision.

16. There are three children whose interests may be affected by this decision. The first of them is the applicant’s daughter (aged 13) who resides with her mother, Ms Smith. The applicant has had a relationship with that child for her entire life. I understand she has not visited the applicant in gaol, but that is not surprising in the circumstances. It was clear from her statement and her attendance at the hearing that she was interested in what happened to her father notwithstanding his offending. I note her sister, who was the victim of the offending, has confirmed (in a statement) that the applicant’s daughter wanted the applicant to stay. While there is no suggestion the applicant and his daughter will live together if he is permitted to remain, it is likely they will have an ongoing relationship that is, by all accounts, essentially positive. I note the child could travel to New Zealand if Mr Nemo was required to leave the country, assuming her mother was agreeable. I accept this child’s interests favour the applicant staying in Australia where he can continue to play a role in her life.

17. The interests of the other two children do not favour the applicant as clearly. His relationships with the two children began comparatively recently. They lived under the same roof for approximately eight months but the applicant has not seen the children while he was incarcerated. I note he concedes the relationship with the female child, who is 15 years of age, is not especially close. There is some evidence that the male child is more impressionable and might benefit from a stable father figure, but it is not at all clear the applicant is the right person for that task. I was told the male child did not have a problem with the applicant’s behaviour in light of all that has occurred, but that is troubling in and of itself.

18. I accept all three children – especially the applicant’s daughter with Ms Smith – will feel a sense of loss and disruption if the applicant is required to leave the country. I also accept it will be difficult for the two children of Ms Jones to maintain a relationship with the applicant if they are unable to travel to New Zealand. That was certainly the effect of their written statements that were provided to the Tribunal.

19. While I accept the interests of the applicant’s daughter with Ms Smith weigh in the applicant’s favour, I do not accept the interests of the children of Ms Jones are seriously affected if the applicant were required to leave. On balance, then, I am satisfied the fourth consideration weighs only marginally in favour of the applicant.

    Other considerations

20. The Direction permits me to consider other matters that may be relevant. I turn to those now.

21. The applicant has extensive family ties in Australia. His mother and siblings reside here. His daughter lives here, and he said he has maintained a cordial relationship with that child’s mother. His new family is also supportive. I was not given any reason to doubt Mr Nemo’s relationship with his new partner is a genuine de facto marital relationship that will be disrupted, and potentially ended, if the applicant is removed from Australia. The applicant conceded he is not financially supporting his partner or anyone else. I note his partner was aware of the applicant’s behavioural issues either at the time of the relationship or shortly after it commenced.

22. The strength of the family ties was apparent from the number of statements from various members of the applicant’s extended family and social circle that were provided in support of the application. A number of the individuals who gave statements were present at the hearing, including the three teenage children I have already discussed (although I excluded the children from much of the proceedings given the nature of the evidence). I note the applicant said his mother and sister were in poor health and he was hopeful he could be of assistance to them if he stayed behind, although there was no evidence he was essential to their care and management.

23. The applicant was unable to refer me to significant evidence of community ties to this country beyond those that he has made through the family.

24. Mr Nemo is middle-aged and in good physical health. He has no special need for welfare or health services that are unavailable in New Zealand.

25. The applicant has not been in New Zealand for many years, and he has not maintained contact with his family and former acquaintances there. He surmised that he might be able to re-establish contact with his step-mother. Although he said in evidence that he had not seen her for some time, he agreed he had a good relationship with her: she raised him. But he is not a stranger to the country. He speaks the language and he is fit for work.

26. Mr Nemo will be cut off from his family in Australia to some extent if he is required to return to New Zealand. I accept the isolation from his daughter in particular would be hard for him, although she is able to visit him. The other children I have already discussed may not be able to visit. Other family members could visit him as well, although the applicant points out that is an expensive exercise and his mother and sister experience health problems that make travel more burdensome.

    Conclusion

27. On balance, the primary considerations suggest the applicant’s visa should be cancelled. The first consideration – protection of the Australian community – weighs especially heavily in favour of cancellation. The interests of the children marginally favour the applicant. The other considerations also favour the applicant to a limited extent, but not to the point where I would be convinced the applicant should be permitted to remain in this country. The decision to cancel the applicant’s visa pursuant to s 501 of the Act should therefore be affirmed.

I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 4 May 2012

Date(s) of hearing	27 April 2012
Applicant	Self-represented
Solicitors for the Respondent	Mr Eteuati