Newcombe and Minister for Immigration and Multicultural Affairs - [2000] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL   )
  )          No. V2000/342
GENERAL ADMINISTRATIVE DIVISION    )

Re:Philip John Newcombe
Applicant

And:Minister for Immigration and Multicultural Affairs
Respondent

DECISION [2000] AATA 388

Tribunal: Deputy President B.M. Forrest

Place: Melbourne

Date: 18 May 2000

Decision:The decision under review will be set aside and the matter remitted to the respondent Minister with a direction that for the purposes of the exercise of the discretion contained in s. 501(2) of the Migration Act 1958, the visa granting the applicant permanent residence in Australia not be cancelled.

........(Sgd. B.M. Forrest)...........
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL   )
  )          No. V2000/342
GENERAL ADMINISTRATIVE DIVISION    )

Re:Philip John Newcombe
Applicant

And:Minister for Immigration and Multicultural Affairs
Respondent

REASONS FOR DECISION
DELIVERED ORALLY ON 18 MAY 2000

Deputy President B.M. Forrest

The applicant Mr Philip John Newcombe has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs on 22 March 2000 to cancel Mr Newcombe's permanent residence visa under s. 501(2) of the Migration Act 1958 ("the Act").
Mr Newcombe is a British citizen by birth. He was born in Wales on 14 November 1950. He migrated to Australia at 30 years of age arriving on 5 August 1981 entering with right of permanent residence. He is a single man and has never married. He has no children. His parents and two sisters had migrated to Australia earlier. They are permanent residents of Australia
Mr Newcombe has a long history of drug abuse. Before coming to Australia he had worked in the music industry where he was exposed to substance abuse. In Australia he found drugs readily available. He worked sporadically for about eighteen months in the entertainment industry setting up stage equipment. Otherwise he has not worked since arriving in Australia. He was in trouble with the law relatively soon after arrival. He was first convicted on 14 December 1982 when he was granted two years probation for theft and obtaining a financial advantage by deception. The Court order included a requirement he undergo treatment for drug abuse. What followed is a long history of offending. For present purposes it is unnecessary to recite all of his criminal history, recited in detail in the material before me other than to observe that Mr Newcombe's criminal history is in summary one of offences of dishonesty, of theft, forgery and of obtaining property by deception. Briefly the offences included the fraudulent use of stolen business and personal documents, cheque books, credit cards, drivers licences, taxation refund cheques whereby money and or goods were obtained from financial institutions and other businesses.
In addition Mr Newcombe has convictions for driving offences, receiving stolen goods and possession of drugs of dependence. He has served various terms of imprisonment for his offences, in total about five years. In terms of offences and sentences, of particular consequence were the convictions at Melbourne Magistrates' Court on 12 June 1998 for theft (four counts); attempting to obtain property by deception (three counts); making a false document (three counts); obtaining property by deception (twenty-three counts); handling stolen property (three counts); obtaining financial advantage by deception (two counts); going equipped to steal/cheat; making counterfeit money (four counts); uttering counterfeit money (four counts); making a copy of a false document (three counts); and unlawful possession. He was sentenced to twenty-four months imprisonment on each count with a non parole period of fifteen months. He was also sentenced to three months imprisonment for driving while disqualified and for unlicensed driving, all sentences to be served concurrently. Appeals against the convictions and sentences were dismissed.
As a result of being sentenced to a term of imprisonment for twelve months or more Mr Newcombe has a "substantial criminal record" as that expression is defined in s. 501(7)(c) of the Act and therefore does not pass the character test in s. 501(6)(a) of the Act. In these circumstances the delegate of the Minister invoked the power contained in s. 501(2) to cancel Mr Newcombe's permanent residence visa.
There remains the question of whether despite failing the character test, the discretion contained in s. 501(2) should be exercised to cancel Mr Newcombe's visa. For the purpose of the exercise of the discretion under s. 501(2) to cancel a visa, the Minister has issued Direction No. 17 with effect from 16 June 1999 which has the force of s. 499 of the Act ("the Direction"). The Direction provides guidance to decision makers in making a decision to refuse or cancel a visa under s. 501 of the Act. The Direction requires that the Tribunal have regard to primary considerations and a number of other considerations. This requires a balancing exercise having due regard to the primary considerations but also taking into account all relevant considerations. The primary considerations relevant for present purposes are:
"(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community;
…"
Looking at the totality of Mr Newcombe's offending I think it is not doing him an injustice to describe him as a serial offender, in many instances involving quite substantial amounts of money and goods. His offending is to be regarded seriously because of its extent and not only for the disruption and inconvenience caused to business enterprises but for the understandable distress and anxiety that may reasonably expected to have been suffered by individual victims.
There is a temptation at times to gloss over the effect of non violent crime. To use but one example of his offending and at the lower end of the scale the theft of a tax refund cheque may cause unnecessary distress at the time to the person entitled to it, and who may have been dependent upon its receipt in a timely way.
In view of Mr Newcombe's criminal record, the right of the community to protection and the expectation of the Australian community requires consideration of the likelihood of his offending being repeated. It was submitted by Ms Taverner who appeared for the Minister that Mr Newcombe was a high risk recidivist and therefore an unacceptable risk.
In so far as past behaviour is any indicator of future conduct then Mr Newcombe may be regarded as an unacceptable risk because of the persistence of his offending.
Central to Mr Newcombe offending has been his long standing drug addiction and crucial to his rehabilitation is whether or not he can keep his addiction under control. He has attempted to do so over the years. He has participated in drug rehabilitation programs including a residential course, and methadone programs, without long term success but with intermittent periods when he was able to abstain from heroin.
I note that Mr Newcombe was granted parole after serving the minimum term however in the three months after his release in September 1999, he used heroin on three occasions. He received a parole board warning. Objectively this gives little cause for optimism that Mr Newcombe presents as an acceptable risk to the community.
On the other hand evidence was given that for the six months since November 1999 he has been free of prohibited substances. Parole is due to expire in June 2000. The prospect of removal from Australia has provided additional motivation not to reoffend. Mr Jeffrey Cummins, psychologist believes Mr Newcombe (who is approaching 50 years of age) is at the "tail end" of his heroin addiction.
Mr Newcombe has expressed remorse for his past. While it might be thought that his remorse is in response to the predicament he know finds himself in, I am prepared to accept it is genuine even though I have reservations that his role in the dishonesty involving falsified cheques was limited to the extent his evidence indicated.
In his effort to rehabilitate himself, Mr Newcombe has distanced himself from former associates, and he has significant support both from his family and family friends. He also has accommodation provided at the residence of a sister. He shares an extension to his sister's dwelling with his parents. Further, despite a long absence from the workforce he has the offer of employment by a family friend, Mr Richard Jones.
These are positive signs of reform to the extent that I would on balance assess his risk of recidivism as moderate rather than high.
Where as here Mr Newcombe's offending occurred against a background of a long standing drug addiction I think that in these circumstances the general deterrence factor is not one of particular weight.
Mr Newcombe has by his behaviour breached the expectations of the Australian community regarding obedience to Australian laws. While his criminal record is deplorable the nature of his offending does not fall within the area of criminal activity, namely violent behaviour or drug trafficking, upon which the Direction makes particular emphasis. There was no evidence to suggest Mr Newcombe's involvement with drugs was for financial gain other than for his personal addiction. If it were otherwise I have little doubt the community would expect he be removed from Australia.
I now turn to the other considerations. I am mindful that these considerations, although the focus of Mr Newcombe's case, are to be given less weight than the primary considerations. I am satisfied that Mr Newcombe's removal would cause significant hardship to his immediate family members, his parents and two sisters who have been settled in Australia for many years. I accept that the ties that bind are drawn tight in the Newcombe family. His immediate family have demonstrated their support which I accept is genuine. While his parents and sisters have each other, the permanent removal of Mr Newcombe would be a source of considerable hardship particularly to his parents and given that their financial resources are limited would make overseas travel difficult.
Mr Newcombe's ties to Australia are to his family. He has no business or existing employment ties. He has the offer of future employment to which I have already referred. He has made no apparent contribution to the Australian community. I also have regard to the fact that if returned to Wales he would, despite an absence of eighteen years, be returning to a country he left as a 30 year old and not as a child. That said he would have little prospects there. Little could be expected by way of family support from relatives who remain there. He has not retained any contact with the country of his birth. Obviously cultural ties remain and although the services of a developed country would be available to him he would lack the family support that is provided to him here. There is in his circumstances considerable dependence by him on that support in the rehabilitation process.
One other matter to which I have had regard is that Mr Newcombe suffered a fractured tibia and fibula in a motor vehicle accident in 1996 as detailed in the report of Dr Frank Imeneo at folio 124. He underwent extensive rehabilitation in the aftermath of the development of osteomyelitis in the bone factures which complicated and extended the injury recovery process. Medical treatment is ongoing and as I was informed he has an unresolved Transport Accident Commission claim for his injuries. Quite apart from anything else it is reasonable to assume that his removal from Australia would not facilitate the proper resolution of his claim.
At the end of the day the task that I have is one of balancing the relevant considerations as the Direction requires me to do. The applicant is motivated to rehabilitate his life and is acutely aware of what is in store if he reoffends. He has a close network of family and family friends all of whom impressed me with their desire to help, understanding as they now do, the parlous state of Mr Newcombe's right to remain in Australia.
Against Mr Newcombe is the extent of his criminal record, and in my assessment a moderate risk of reoffending. But I do think he has reached a stage in his life when he realises that the community, his family and himself have all suffered by his behaviour. In this regard I also take into account he has not previously been warned of the possibility of cancellation of his right of residence in Australia.
The competing considerations are finally balanced but in all the circumstances I have come to the conclusion that he should be given this and probably final chance to be a law abiding member of the community.
For these reasons the decision under review will be set aside and the matter remitted to the respondent Minister with a direction that for the purposes of the exercise of the discretion contained in s. 501(2) of the Act, the visa entitling Mr Newcombe to remain permanently in Australia not be cancelled.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 and 18 May 2000
Date of Decision  18 May 2000
Counsel for the Applicant        Mr J. Gibson
Solicitor for the Applicant         Fernandez Canda Gerkins
For the Respondent                 Ms J. Taverner, departmental advocate