Nicholas and Minister for Immigration and Citizenship

[2008] AATA 489

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 489

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1071

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY JOHN NICHOLAS

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Justice Tamberlin, Presidential Member

Date13 June 2008

PlaceSydney

Decision The decision under review is set aside, and the visa of the applicant is not cancelled.

.............[sgd]...............................

Presidential Member

CATCHWORDS – IMMIGRATION – visa-ex – whether applicant’s visa should be cancelled on character grounds – very serious criminal record – protection and expectations of the Australian community – best interests of the child – other considerations – best interests of children and motivations to avoid recidivism weigh in favour of not cancelling visa – decision under review set aside.

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RELEVANT ACT:

Migration Act 1958 (Cth): ss 499(1), 499(2A), 501(2), 501(6), 501(7)

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CITATIONS:

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

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REASONS FOR DECISION

13 June 2008 Justice Tamberlin, Presidential Member

1. This is an application for review of a decision by a delegate of the respondent (“the Minister”) under s 501 of the Migration Act 1958 (Cth) (“the Act”) to cancel a visa granted to the applicant (“Mr Nicholas”) on the grounds that (i) the Minister reasonably suspected that Mr Nicholas did not pass the “character test” in s 501(6) of the Act, and (ii) Mr Nicholas did not satisfy the Minister that he passed the character test: see s 501(2) of the Act.

2. It is common ground that Mr Nicholas does not pass the character test in s 501(6) because he has a “substantial criminal record”, as that term is defined in s 501(7) of the Act. The issue for determination is whether or not the Tribunal should exercise its discretion under s 501(2) of the Act to cancel the visa.

3.        Mr Nicholas entered Australia with his parents on a Class BF Transitional (Permanent) Visa on 27 December 1981.  In subsequent years, Mr Nicholas was convicted of several offences.  Some of these are of particular note.  On 30 January 1985 he was sentenced by the District Court for “break, enter and steal” and sentenced to 300 hours’ community service.  Almost four years later, on 10 November 1988, he was convicted of “steal motor vehicle” and “possession implements”, for which he sentenced to 18 months’ imprisonment with a non-parole period of 14 months.

4.        On 25 February 1992, Mr Nicholas was warned that the Minister had decided not to cancel his visa and order his deportation from Australia, but that any further conviction for an offence would result in the question of his deportation being reconsidered by the Minister.  He was also warned that disregard of this caution would weigh heavily against him if the Minister saw fit to reconsider his case.

5.        After a number of further convictions, including convictions related to the contravention of apprehended domestic violence orders, Mr Nicholas was convicted by the District Court on 14 October 2004 for “maliciously inflict grievous bodily harm” and was sentenced to three years and nine months’ imprisonment with a non-parole period of two years and six months.  These offences are the matters which the Tribunal must take into account when exercising its discretion.

6. In light of the above convictions, on 7 March 2008, Mr Nicholas’ BF Transitional (Permanent) visa was cancelled by a delegate of the Minister pursuant to s 501(2) of the Act. On 14 March 2008, Mr Nicholas applied to the Tribunal for a review of this cancellation decision. Mr Nicholas was released from imprisonment on 13 April 2008, and is presently being held in immigration detention, pending determination of this application.

7. When exercising its discretion under s 501(2), the Tribunal must comply with any directions promulgated by the Minister pursuant to s 499(1) of the Act: see s 499(2A). Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act in relation to the performance of those functions or the exercise of those powers. The Tribunal is one such body: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. The relevant direction issued by the Minister in relation to the exercise of the discretion in s 501(2) of the Act is cited as “Direction – Visa Refusal and Cancellation under section 501 – No.21” (“the Direction”). As the Direction states in its preamble, its purpose is to provide guidance to the Tribunal in making decisions to refuse or cancel a visa, and thereby to facilitate the Act’s objective of regulating, in the national interest, the coming into and presence in Australia of non-citizens.

8. Part 2 of the Direction sets out what considerations should be taken into account, and indicates what importance should be given to those considerations, when exercising the discretion in s 501(2). It requires the Tribunal to have regard to three primary considerations and, “where relevant”, a range of other considerations. Greater importance or weight should be placed on the primary considerations, although the Direction acknowledges that the other considerations may attract some, albeit lesser, importance or weight.

9.        The three primary considerations are:

·the protection of the Australian community, and members of the community;

·the expectations of the Australian community; and

·in cases involving a parental relationship between children and the person under consideration, the best interests of the children.

10.       The other considerations which the Direction identifies as potentially relevant include, inter alia, the disruption to the non-citizen’s family and business, any marriage or de facto relationship he or she is in, the degree of hardship which members of the non-citizen’s family may suffer, the likelihood of the non-citizen evading any outstanding legal matter, evidence of rehabilitation, the purpose of the non-citizen’s stay in Australia and some of Australia’s international obligations.

Primary consideration one – protection of the Australian community

11.      The first factor to consider in relation to this primary consideration is the seriousness and nature of the conduct involved.  In this case, as is indicated above, Mr Nicholas has a long criminal record.  The earlier part of his record, dating from 1985, largely concerns matters of dishonesty and theft.  It also discloses that he has spent significant periods in custody earlier in his life.

12.      However, since 1995, most of the offences committed by Mr Nicholas related to domestic assaults, some of which involved alcohol.  In respect of some of these, his sentences were recognisances and fines.  From 1995 to 1998, Mr Nicholas did not breach his bond, but from 1998 there were a number of domestic assaults and contraventions of domestic violence orders which resulted in the imposition of further bonds, fines and community service orders.  In December 2000, he received a 12 month bond for assault and contravening an apprehended violence order.  In March 2002, he was placed on a further bond and was, not for the first time, the subject of supervision by the Probation and Parole Service.  In addition, Mr Nicholas attended the William Booth Institute to undertake a program to overcome his alcohol abuse, but did not complete the program.

13.      In July 2003, Mr Nicholas again contravened an apprehended domestic violence order, which resulted in a short term of imprisonment.  This sentence was substituted on appeal by a 20 month bond (for the period 1 October 2003 to 30 June 2005).  Mr Nicholas co-operated with the supervision and attended further alcohol counselling.  He also attended a domestic violence counselling group for 16 weeks, from which he received good reports, and remained sober for a significant part of 2004. 

14.      The offence which was central to the Minister’s decision to cancel Mr Nicholas’ visa was committed at a time when he was on a good behaviour bond and also at conditional liberty.  The offence was that he maliciously inflicted grievous bodily harm on his then partner.  Mr Nicholas pleaded guilty to this charge at an early stage.  At the time of the commission of the offence, Mr Nicholas had a de facto relationship with the victim.  That relationship produced a son, who at the time of the incident was six years old.  The relationship continued for some time, but was dysfunctional and volatile.

15.      At the time of the assault, Mr Nicholas was intoxicated.  The assault resulted from a violent struggle, and comprised a sustained attack by Mr Nicholas on the victim.  Mr Nicholas punched her many times in the face, threw her around and at one stage tried to choke her.  At least part of the incident was witnessed by one or both the children living in the residence, one of whom was Mr Nicholas’ son.  The victim was severely hurt, sustaining multiple fractures, nerve damage, impaired muscle function, stress and anxiety attacks.

16.      In these circumstances there can be no doubt that the criminal conduct of Mr Nicholas has been serious, continuous and has caused substantial damage.  In my view, his actions clearly constitute serious conduct, and are of a nature of crime from which the Australian community – and particularly in this case those members of the Australian community who might come into contact with Mr Nicholas in the future in circumstances similar to those in which he committed his crimes – ought to be protected.  Over time, Mr Nicholas has been subjected to significant sentences of imprisonment and other sanctions.  According to paragraph 2.7 of the Direction, these sentences are an indication also of the seriousness of Mr Nicholas’ conduct against the Australian community.  I have taken into account the sentences imposed on Mr Nicholas, including their extent, number, nature and regularity, and I conclude that his conduct is properly categorised as “serious”, as that term is used in the Direction, and of a type from which the Australian community should be protected.

17.      Paragraph 2.8 of the Direction mandates that the Tribunal must take into account four considerations when exercising its discretion.  Only one of those considerations, namely the relevance of any mitigating factors advanced by the non-citizen, is applicable in the present case.  The mitigating factors advanced by Mr Nicholas relate chiefly to his contrition after the commission of his offences, his work at rehabilitation (both on a personal level and with various support groups), his desire to have a united family, the ill health of his mother who lives in Australia and his desire to care for her and generally have a relationship with his parents, the relatively small amount of family support which will be open to him if he is repatriated to the United Kingdom and his general appreciation that a favourable decision from this Tribunal would be a “last chance” he would not waste.  In relation to mitigating factors applicable to the offence for which he was convicted on 14 October 2004 (which were listed comprehensively by the sentencing judge in the District Court), these include his early guilty plea, the fact that he undertook treatment for his alcoholism and domestic violence problems, his remorse and contrition, his willingness to continue institutional rehabilitation and his frank recognition that he severely hurt his de facto partner and his own son.  I have considered these factors and, in my view, they do not alter my finding that Mr Nicholas’ conduct is appropriately categorised as “serious” within the meaning of the Direction.

18.      The second element to consider in relation to the protection of the Australian community is the risk of recidivism.  Paragraph 2.10 of the Direction states that it is “the Government’s view” that a person’s previous general conduct and total criminal history are highly relevant in assessing the likelihood of recidivism.  Applying the Direction to the present case, when assessing Mr Nicholas’ likelihood of recidivism, particular weight ought to be given to (i) the consideration that Mr Nicholas committed further offences after having been warmed on 25 February 1992 about the risk of his visa being cancelled; (ii) the repetition by Mr Nicholas of his offending conduct over a long period of time; and (iii) the extent of any rehabilitation Mr Nicholas has achieved or may achieve in the future.  I note that I have considered all of those factors when coming to my conclusion about Mr Nicholas’ likelihood of recidivism.

19.       Mr Nicholas has in the past made many attempts to manage and curb his anger, alcohol and drug problems.  Despite these efforts, he has nevertheless repeatedly relapsed into criminal behaviour, struggled to overcome his entrenched alcohol addiction and has maintained a tendency towards domestic violence.  This is a matter which indicates that there is a possibility that he may re-offend if permitted to remain in Australia.

20.      Evidence was adduced by Mr Nicholas to demonstrate that the likelihood of his recidivism is less than his previous record might otherwise suggest.  Mr Nicholas gave evidence himself, and adduced oral and written evidence from both his parents and from a former de facto partner he lived with in the early 1990s and with whom he has one child.  An album of family photographs was also tendered on his behalf, showing him with his parents and one of his children.  The tenor of Mr Nicholas’ evidence is that he is consciously and successfully making strides towards rehabilitation and reformation of his character.  His former de facto partner gave evidence that she now observes in Mr Nicholas a calmer and friendlier aspect than when she lived with him in the past.  She states that he demonstrates greater patience, that he is very good with their son, now aged 14, and that acts in a calmer and more loving manner with those around him.  Finally, the evidence of his parents – who were both most impressive witnesses and who I am satisfied have no illusions about Mr Nicholas’ past character and the future difficulties he will have in improving his conduct – was that they will make great efforts to control Mr Nicholas’ behaviour, including efforts to obtain employment for him.  On the basis of this evidence, I am satisfied that there is a very strong affectionate relationship between Mr Nicholas and his mother and father with whom he intends to live upon release.  Mr Nicholas will receive emotional and practical support in his home environment, where it is said alcohol will not be present and where his parents will keep a close look on his behaviour.  Of course, his parents cannot ensure that there will be no recidivism on his part, but the strength of his parents’ affection will greatly assist him not to repeat his offending behaviour.

21.      It is worth noting that Mr Nicholas has now served his full sentence of two and a half years.  I am of the view that the effect of the period of incarceration will be enduring, and that it will have a strong salutary effect on Mr Nicholas’ future conduct.  Mr Nicholas has had time to reflect on his actions, and plan for a rehabilitated life after prison.  These matters, taken together with the loving support of his parents and his affection towards his children, weigh strongly against the danger of recidivism.

22.      The final matter which the Direction requires the Tribunal to take into account when assessing the primary consideration of the protection of the Australian community is any general deterrence which may arise from the cancellation of Mr Nicholas’ visa.  This is of course, an important consideration.  I consider that, if Mr Nicholas’ visa was not cancelled, there may be a perception that such a decision fails to impose suitable restraints and sanctions on criminal conduct such as Mr Nicholas’.  Nevertheless, while there is some danger that the decision not to cancel Mr Nicholas’ visa would reduce the general deterrent effect of any alternative decision, I do not consider it is a matter which should be given great weight in the present case.

Primary consideration two – expectations of the Australian community

23.      The Minister submits that the serious nature of Mr Nicholas’ conduct is such that the Australian community would expect that his visa be cancelled.  The Minister accepts that some members of the Australian community would have compassion for Mr Nicholas, given that he has lived in Australia for almost 27 years and has two Australian citizen children and two elderly parents resident here.  Nevertheless, says the Minister, overall the community would expect that non-citizens who commit serious and violent offences (and have subsequently been given the opportunity to rehabilitate through parole) should not be allowed to remain in the country.  It is said that the expectation would be particularly strong in the case of Mr Nicholas because he had committed several offences while on conditional liberty and after being warned that his visa would be cancelled.

24.      I accept these submissions advanced by the Minister and give them significant weight.

Primary consideration three – the best interests of the children

25.      The third primary consideration mandated by the Direction is the best interests of Mr Nicholas’ children.  In this case, the welfare of the children is an important factor which militates against a decision to cancel Mr Nicholas’ visa.  Mr Nicholas has two children from two different relationships, named Mitchell and Richard.  They are 14 years and 10 years of age respectively.  He no longer has a meaningful relationship with the children’s mothers, and his contact with his sons has not been extensive to date.  He had limited contact with his oldest son, Mitchell, until 1997 at which time he lost contact with him, and Mitchell was subsequently placed in the care of the New South Wales Department of Community Services.  Mr Nicholas says that Mitchell had visited him every two to three months from April 2002 to October 2004, and once in jail in May 2006.  Mr Nicholas also says that he has telephone contact with Mitchell once a fortnight when Mitchell visits his mother.  Mr Nicholas has also sought orders from the Children’s Court in relation to increasing his contact with Mitchell.

26.      Mr Nicholas lived with Richard’s mother and Richard up until 2004, at which point his relationship with Richard’s mother broke down. The assault for which Mr Nicholas was convicted on 14 October 2004 was committed against Richard’s mother, and may have been witnessed by Richard.  Mr Nicholas has not had any significant contact with Richard since 2004. 

27.      In forming a view on what will be in the children’s best interests in this case, I take into account, as is noted in paragraph 2.15 of the Direction, that in general terms a child’s interest is best served if it remains with both parents.  In this case, if Mr Nicholas’ visa is not cancelled, the children are likely to remain in Australia with their mothers and I am satisfied that there exists a real possibility of greater contact and stronger bonds developing between Mr Nicholas and his sons, or at least between him and Mitchell.  Contrary to this finding, it is said by the Minister that the role of Mr Nicholas to date in the lives of his sons has been relatively insignificant.  The Minister also says that there may be further destructive effects on Mr Nicholas’ sons as a result of his criminal conduct, his anger management problems and his tendency to alcohol abuse and violence.  I do not accept that the likelihood of these destructive effects is as strong as suggested by the Minister, but these are important matters which I have taken into account.  On balance, I consider that it is in the best interests of the children that Mr Nicholas remain in Australia.  In my view, this factor in favour of non-cancellation of Mr Nicholas’ visa outweighs other considerations in the circumstances of the present case.

Other considerations

28. The Direction also lists some other matters which may be relevant to the exercise of the discretion in s 501(2) of the Act. Only some of these matters are in my view relevant to this case, and indeed the Direction states that appropriate consideration should only be given to the matters “where relevant”, and that they generally should be “given less individual weight than that given to the primary considerations”. In light of this, I consider below some but not all of the matters which are classified by the Direction as “other considerations” and which are relevant to this application.

29.      In this case there will be disruption to Mr Nicholas’ family, including disruption to his elderly parents and his children, if his visa is cancelled.  Mr Nicholas’ mother is not well and the evidence demonstrates that it is unlikely that the parents will be able to move to the United Kingdom to be with him.  I recognise that Mr Nicholas will be able to stay in touch with his parents in Australia and there is no suggestion that they are dependent on him in any way.  Nevertheless, I consider that, although not a primary consideration, the relationship with the parents and with the children is of significance and militates against cancellation of Mr Nicholas’ visa.

30.      In relation to considering whether Mr Nicholas has a personal relationship with an Australian citizen or permanent resident, I note that there is no evidence of any current relationship which might weigh in favour of Mr Nicholas remaining in Australia.

31.      It is clear that the removal of Mr Nicholas from Australia will result in a degree of hardship to his immediate family.  This, I think, is an important factor.  Although the evidence establishes that Mr Nicholas has two older brothers resident in the United Kingdom, the evidence also indicates that they are not close and that any hardship felt by his family in Australia will not be lessened by his living in the same country as his brothers.

32.      The evidence of Mr Nicholas’ rehabilitation is another factor which weighs in favour of not cancelling his visa.  Mr Nicholas has indicated that he has attended courses to manage his anger, violence and alcohol abuse, and this shows a level of preparedness for reintegration back into society.  Notwithstanding that Mr Nicholas has at times relapsed into serious antisocial and criminal patterns of behaviour, I am not persuaded that his rehabilitation is without reasonable prospects, although I do have some reservations as to its permanence.  The potential for rehabilitation is important in this case, and I give it significant weight in favour of Mr Nicholas.

33.      Finally, I note that Mr Nicholas has held a permanent visa since he entered Australia in 1981, and that he and his parents intend to stay in Australia on a permanent basis.  This duration of stay is a matter which favours the non-cancellation of Mr Nicholas’ visa.  In addition, as mentioned earlier, I have assigned substantial weight to the fact that Mr Nicholas’ criminal record has continued despite being informed in 1992 that his pattern of behaviour exposed him to the possibility that his visa would be cancelled and that he would be removed from Australia.  This is a matter which favours the cancellation of Mr Nicholas’ visa.

Conclusion

34.      Having regard to the above considerations, and in the light of all the material put before me, I am satisfied that the visa of Mr Nicholas should not be cancelled.  In reaching this conclusion, I have given great weight to the interests of his children and the real possibility of a good relationship developing over the coming years.  I am persuaded that there is scope to develop a strong relationship between Mr Nicholas and his sons and that cancellation of the visa would in effect destroy the prospect of any such development.  I have also taken into account the salutary effect which two and a half years’ imprisonment is likely to have upon Mr Nicholas and his attempts at rehabilitation.  In addition, I have taken into account and given significant weight to the evidence of the parents, and in particular their statements as to the efforts they will undertake to ensure that Mr Nicholas’ rehabilitation will be successful.

35.      In this case, Mr Nicholas has strong motivations to avoid repetition of his past behaviour.  These include matters such as his affection for his children; his love of and respect for his parents; the desire to avoid causing his parents any more suffering such as that occasioned to them by his numerous court appearances and past behaviour; his long-standing ties with Australia, and his desire to remain in Australia after 27 years’ living here; the chastening deterrent effects of two and a half years in gaol; and the prospect of future punishment together with the almost certain cancellation of the right to remain in this country if he offends again.

36.      Accordingly, my decision is that the visa should not be cancelled.

I certify that the thirty-six (36) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Presidential Member.

Signed:         .....................[sgd]...........................................................
Lucas Bastin, Associate to the Honourable Justice Tamberlin

Date of Hearing  14 May 2008
Date of Decision  13 June 2008
Counsel for the Applicant  Mr I. Asuzu
Solicitor for the Applicant  LAC Lawyers Pty Ltd
Counsel for the Respondent                     Mr A. Chand
Solicitor for the Respondent                    Clayton Utz