NICHOLAS BROWN and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 235

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0440

Re

NICHOLAS BROWN

APPLICANT

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 24 April 2012

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided that the applicant’s Class BF Transitional (Permanent) visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth).
.............sgd S D Hotop....................
S D Hotop, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a citizen of United Kingdom – applicant first arrived in Australia in 1981 when aged seven years – applicant has not since departed Australia – applicant first convicted of criminal offence in 1988 – applicant consistently convicted of offences in period 1988-2009 – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community weighs in favour of cancellation of visa – best interests of child and other primary considerations weigh against cancellation of visa – primary and other relevant considerations on balance weigh against cancellation of visa – preferable decision is that visa not be cancelled – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 501(2)
Direction [no 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S D Hotop
24 April 2012
Introduction

Nicholas Brown (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 23 January 2012, cancelling his Class BF Transitional (Permanent) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). A formal written notice of cancellation of the visa, dated 25 January 2012, was sent to the applicant by registered post.
The Factual Background
The applicant was born in May 1973 in England and he is a citizen of the United Kingdom. He first arrived in Australia on 14 February 1981, when he was seven years of age, and he has remained in Australia since that date.
The applicant has an extensive criminal history in Australia covering the period from February 1988 to February 2010 (see paragraph 9 below). His most recent convictions occurred on 5 February 2010 when he was convicted, on his pleas of guilty, in the Perth District Court of Western Australia, of the following offences and received the following sentences:
·     Grievous Bodily Harm  Imprisonment 2 years and 6 months
·     Assault Public Officer  Imprisonment 12 months (cumulative)
·     Enter Prison Without Permission       Imprisonment 6 months (concurrent)
·     Assault Occasioning Bodily Harm     Imprisonment 12 months (cumulative)
·     Assault Occasioning Bodily Harm     Imprisonment 12 months (concurrent)
·     Criminal damage  Imprisonment 6 months (cumulative)
·     Criminal damage  Imprisonment 6 months (concurrent)
·     Stealing a Motor Vehicle                   Imprisonment 6 months (concurrent).
His total effective sentence was 5 years’ imprisonment, from 26 March 2009, and he was made eligible for release on parole after serving 3 years’ imprisonment.
By letter dated 24 May 2011 an officer of the Department of Immigration and Citizenship (“Department”) formally notified the applicant that the visa was to be “considered for cancellation” under s 501(2) of the Act and gave him the opportunity to comment. The applicant subsequently provided to the Department personal statements and supporting documents.
On 23 January 2012 a delegate of the respondent decided to cancel the visa under s 501(2) of the Act.
The Relevant Legislation
Section 501(2) of the Act provides:
“ 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.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G19, pp 1−225) lodged by the respondent on 28 February 2012 (Exhibit R1);
·the Respondent’s Supplementary Documents (pp 1–162) filed on 26 March 2012 (Exhibit R2);
·Exhibits A1–A5 tendered by the applicant; and
·the oral evidence of the applicant, Stephen McNelly, Georgia McNelly, and the applicant’s 15-year-old daughter.
The Applicant’s Criminal History
The applicant’s criminal record comprises convictions of 65 offences, the first conviction occurring on 24 February 1988 and the most recent convictions occurring on 5 February 2010 (G9). The applicant’s criminal record may be summarised as follows:
·     1988 – 1991:       5 convictions as a juvenile relating to driving offences and
offences of stealing, breaking and entering, and possessing cannabis with intent to sell or supply, which resulted in probation and community service orders;
·1993:                  2 convictions of breach of a community service order imposed on 3 April 1991, which resulted in a fine of $500;
·1994:                  9 convictions in respect of offences including driving offences, common assault, burglary, stealing, and resisting arrest, which resulted in fines ranging from $80 to $400;
·     1995:                   2 convictions of being on premises without lawful excuse,
and damage, each of which resulted in probation for 18 months, 5 convictions for driving offences, resulting in fines ranging from $100 to $400, and a conviction of breaching bail, resulting in a fine of $200;
·1997:                  a conviction for driving whilst suspended resulting in a fine of $200 and licence disqualification for 9 months;
·1999:                  2 convictions on 8 June 1999 of breach of a Violence Restraining Order ($400 fine) and damage ($200 fine), and 3 convictions on 5 November 1999 for aggravated burglary (18 months’ imprisonment), assault occasioning bodily harm (18 months’ imprisonment, concurrent), and breach of a Violence Restraining Order (6 months’ imprisonment, concurrent);
·2000:                  a conviction of driving without a licence, resulting in a fine of $300 and licence disqualification for 3 months;
·2001:                  2 convictions for resisting arrest ($200 fine) and being disorderly and committing a nuisance ($150 fine);
·     2003:                   a conviction of damage, resulting in a fine of $300;
·2004:                  a conviction for assaulting a public officer, resulting in a fine of $1,000;
·2005:                  12 convictions for offences including common assault and2 Breaches of a Violence Restraining Order (resulting in intensive supervision orders for 12 months), 4 drug offences (each resulting in a fine of $500), and 2 driving offences, resulting in a fine of $200 for each offence and licence disqualification for 3 months);
·24 May 2006:     2 convictions for driving whilst suspended, resulting in a sentence of imprisonment for 6 months and 1 day and licence disqualification for 9 months; 2 convictions for stealing a motor vehicle, resulting in a sentence of imprisonment for 6 months and 1 day (concurrent) for each conviction; a conviction for reckless driving, resulting in a sentence of 4 months’ imprisonment and licence disqualification for 12 months (concurrent); 2 convictions for unlawful damage and one conviction for criminal damage, resulting in a sentence of 1 month’s imprisonment (concurrent) for each conviction;
·April 2007:         a conviction for taking part in the sale of a prohibited drug (methylamphetamine), resulting in a sentence of 15 months’ imprisonment;
·     1 October 2008:   a conviction of stealing, resulting in a fine of $150;
·     5 February 2010: the convictions and sentences set out in paragraph 3 above.
The Sentencing Remarks of Kennedy DCJ on 5 November 1999
When sentencing the applicant in the District Court of Western Australia for the offences of aggravated burglary, assault occasioning bodily harm, and breach of a Violence Restraining Order, Kennedy DCJ said:
“ KENNEDY DCJ: Yes. Thanks very much. Mr Brown, you can remain seated. You have been convicted on your own confession that on 6 September 1999 at Waikiki you entered the place of [PJM] without her consent with intent to commit an offence therein and immediately before the commission of the offence, you knew or ought to have known that there was another person in the place and secondly that on that date you unlawfully assaulted her and did her bodily harm. You were in a relationship with [PJM] and in fact one of the children – and she has two children aged 8 and 3 or 2 years and 9 months. The youngest one was yours. (sic)
She got a violence restraining order against you and one assumes that she felt she had good reason to get a violence restraining order against you and once she got that violence restraining order you knew exactly what it meant and we have numerous complaints from women who say that these violence restraining orders are not worth the paper they’re written on and that would seem to be right, wouldn’t it, because on 8 June 1999 you were convicted of damage when you smashed in the car window and on this day you went to the home, you broke in and the end result of the altercation is that she has a very badly bruised eye and she has bruises all over her and she felt the need to get away from you.
You say, ‘Look, I don’t really remember how it happened, but I don’t think I kicked her. I think I punched her.’ When you spoke to the police you admitted this but you made excuses and you said that she said that she deserved it and this is a very old-fashioned attitude about women that there are occasions when it’s all right for a man to hit a woman because occasionally she deserves it. That is just nonsense. It’s a criminal offence and you wouldn’t do it if she was built like Sonny Liston. They only deserve it if they are smaller than you are, apparently.
It’s very serious and it’s very serious that the children see this sort of thing happening and there is nothing that any woman can do to deserve this. Even if what you are saying is the truth, that doesn’t entitle you to go around there and break into the home and beat her up and in particular to do it in front of the children. You are 26 years of age. I don’t doubt that you love the little girl but this isn’t the way to proceed and at your age we’re entitled to expect better. Basically, while you have a record it’s not that bad and there’s absolutely no reason why you can’t be a law-abiding citizen but you simply can’t go around beating up people who are smaller than you are.
In the circumstances, on count 1 you are sentenced to 18 months’ gaol and on count 2 you are sentenced to 18 months’ gaol, concurrent in each case, and I have taken into account there your plea of guilty, your fast-track plea, the video cooperation with the police but, despite all that, a prison sentence is required. So you are sentenced to 18 months’ gaol on each count concurrent with each other. In each case you are eligible for parole and the sentence commences on 7 September 1999. Please stand down. On the section 32, those matters are concurrent – 6 months concurrent on each one. Please stand down.” (G14)
The Sentencing Remarks of Muller DCJ on 13 April 2007
When sentencing the applicant in the District Court of Western Australia for the offence of taking part in the sale of a prohibited drug, Muller DCJ said:
“ MULLER DCJ: Stand up please. Nicholas Ronald Brown, you have been convicted on your own plea of guilty of the offence of being a party to the sale of a drug, namely methylamphetamine. The offence to which you were a party was committed on the night of 7 April 2005. At the time your two co-offenders, both of whom have since been convicted and sentenced, sold 56.3 grams of methylamphetamine with a purity of approximately 3 per cent to an undercover officer for $12,000 in cash. You provided security for the two co-offenders. When the transaction took place you stood in the laundry of the house armed with a cricket bat and knife. You intended to intervene if things went wrong.
You were born on … May 1973 and you have a fairly extensive record of offending, including convictions for offences of violence and dishonesty. The most serious conviction for an offence of violence was in 1999 when you were sentenced to 18 months’ imprisonment for assault occasioning bodily harm. The most recent conviction was in January 2005 when you were placed on an intensive supervision order for common assault and breach of a violence restraining order. You had only been subject to that order for two months when you committed this offence.
The references and other documents tendered to the court show that you suffered a significant back injury which led you to start using amphetamines to help you through your physical difficulties. The documents I have read really send out a mixed message. The community justice review report dated 16 October 2006 shows that in October 2006 you tested positive on two occasions to opiates. At the same time the observation was made that you had complied with the requirements of your community based order and appeared to be willing and self-motivated in your quest for rehabilitation. You have since engaged in drug counselling at Palmerston and you have decreased your dependence on prescription drugs as well.
In mitigation of sentence Mr Manera emphasised on the last occasion that you had pleaded guilty, albeit at a relatively late stage, and by doing so had demonstrated remorse and a full acceptance of your responsibility.
Mr Manera referred to the fact that you had undergone counselling for your drug problem and stressed that you had received a series of favourable urinalysis results. Mr Manera drew my attention to the positive character references that had been put before the court on your behalf and in particular emphasised the point which took me by surprise, namely, that you had given assistance to the prosecuting authorities. Because I was taken by surprise in relation to that issue, I had the matter adjourned so that it could be further investigated. That has been done.
I am now required to sentence you in accordance with the principles of the Sentencing Act. This legislation requires me to impose a penalty commensurate with the seriousness of your offending and in doing so, to take into account the maximum penalty as prescribed by parliament, the circumstances surrounding the commission of the offence and any aggravating and mitigating circumstances that might exist. As you well know, the maximum penalty for an offence of this nature is imprisonment for a period of up to 25 years or a fine of $100,000 or both.
When you agreed to assist the others, you must have known they were dealing in methylamphetamine or a drug of a similar nature. Apparently you were to receive a small amount of the drug as payment for your services. This drug, as you know, has been categorised as being in the upper range in the hierarchy of drugs. As you heard the prosecutor say, distribution of methylamphetamine in our community has been recognised as having had devastating results and it’s linked to other forms of serious and violent crime including, for example, burglary and robbery. The drug is attractive to young people and its distribution in the community is quite prevalent.
The Court of Appeal has emphasised the need for severe sentences that will act as a real deterrent to those who might be inclined to deal for profit. The need for deterrence outweighs personal considerations which do not in offences of this kind carry the same mitigatory weight as other non-drug related offences. I accept that you were not actually dealing in drugs. Your role was quite different. However, by agreeing to act as a bodyguard in what you knew was going to be a drug transaction involving a significant quantity of drugs and a large amount of money, you played an important role in the transaction that occurred.
Being present and armed, you lent comfort and support to those who were actually involved in the drug deal. You were also going to benefit by being given a small quantity of the drug in payment for your services. I accept that your level of culpability is less than those involved in the actual deal. They were directly responsible for the intended distribution of the drug whereas your role as I said earlier was more peripheral. They also stood to gain more from the transaction than you did.
I still think the offence is so serious that only immediate imprisonment can be justified. You have a history of violence and the offence demonstrates that once again you were prepared to use violence, if necessary, in order to achieve an unlawful objective. What you did looked at in the light of a criminal record shows quite clearly that a deterrent sentence is called for. You have heard counsel say that your co-offenders were sentenced to 35 months and 38 months’ imprisonment respectively for their participation in this offence.
Those periods of imprisonment reflect the discounts that were allowed for pleas of guilty and, as we know in one case, cooperation with the authorities. The female co-offender I understand received a 30 per cent discount for a fast-track plea of guilty which yours is not and 30 per cent discount for assistance to the authorities.
Because your degree of culpability was less than theirs, I intend to start with a sentence of three and a half years’ imprisonment. I will reduce that by 20 per cent to reflect your plea of guilty and the efforts you have made at rehabilitation and allow you a further 25 per cent discount for the assistance you have given to the authorities. That will result in a total discount of 45 per cent.
The law requires me to make a deduction of one-third from the term that would otherwise be arrived at and applying that formula, the effective sentence you will have to serve is one of 15 months’ imprisonment. I will order that you be made eligible for parole in respect of that sentence will be backdated to 9 November 2006 (sic). That sentence is low but only because of your change of attitude and your assistance to the authorities. …” (G12)
The Sentencing Remarks of Stone DCJ on 5 February 2010

When sentencing the applicant in the District Court of Western Australia for the offences set out in paragraph 3 above, Stone DCJ said:
“ Mr Brown, you may remain seated. You’ve been convicted on your pleas of guilty to grievous bodily harm, criminal damage, two counts of assault occasioning bodily harm, stealing, criminal damage by fire. These were all pleas of guilty on indictment.
You also come before me in relation to two charges contained within a notice issued pursuant to section 32 of the Sentencing Act. The charges on that notice are entered a prison without permission and assault public officer.
The statutory penalties for this other offending, that’s the offending on the section 32 notice, are entering a prison without permission is liable to a $1500 fine and/or 18 months’ imprisonment, assault public officer seven years’ imprisonment.
The gravity and seriousness of your offending on indictment, that’s on the matters of grievous bodily harm and the other matters that occurred on 21 March 2009 at Rockingham, is reflected in the statutory penalties for the offences committed. The maximum penalty for an offence of grievous bodily harm is 10 years’ imprisonment.
The statutory maximum penalty for an offence of criminal damage is 10 years’ imprisonment. The statutory maximum penalty for an offence of assault occasioning bodily harm is five years’ imprisonment. The statutory maximum for an offence of stealing a motor vehicle is seven years’ imprisonment. The statutory maximum penalty for an offence of criminal damage by fire is 14 years’ imprisonment.
The conduct constituting the offences for which you have pleaded guilty on indictment and on the section 32 notice has been described in detail by the State prosecutor. The facts are accepted by the defence and I’ll adopt what the State prosecutor has said and formally incorporate her description of the facts into these remarks.
The facts in summary are – and I’ll deal firstly with those events that occurred on 26 September 2008 at Bentley, both on indictment and on the section 32 notice. So the facts there, to put them in their context, are that at about 3.40 pm on Friday, 26 September 2008 you were in the yard of the Boronia Women’s Pre-release Centre, near a building where your partner was residing.
The victim, a prison officer, located you after being alerted to your presence via a silent alarm that was activated when you entered the prison after jumping a perimeter fence. The victim approached you and asked you to go with him to the administration building. You swore at him, the victim and punched him to the face using your right hand. It seems that blow connected with his shoulder from what I understand from the depositions.
The victim raised his hands to protect himself and you punched him in the face again. The victim fell to the ground and was helped by nearby inmates to a nearby bench to recover. You were approached by other members of staff who led you to the administration building.
Due to your assault upon the victim, he received a 2.5 centimetre laceration to his top lip, which completely split his lip and you also caused him to suffer bruising to his face and chest. He also received a depressed fracture to his right cheek which was found at a later date. The victim went to Royal Perth Hospital for medical treatment. His top lip laceration was stitched on 26 September 2008 and he was discharged with further medical treatment to be required.
On Thursday, 9 October 2008 the victim returned to Royal Perth Hospital for surgery. The victim required four plates to be inserted into his right cheekbone for a depressed fracture. He also had a tooth removed during the surgery. At a later date a second tooth broke from the assault and that required surgery, and the victim had ongoing dental treatment to rectify his injuries.”
…
I turn now to the section 32 facts, which relate to this incident and they are that at 3.40 pm on 26 September 2008 you went to the Boronia Women’s Pre-release Centre in Bentley. Your partner Sandra Howlett was a prisoner there at the time. You had called – sorry. You had been called by her earlier in the day due to it being her birthday.
You parked your vehicle at a nearby bus station and walked to the outer perimeter fence of the centre. You climbed over the perimeter fence and entered into the prison yard.
The prison yard is bound by a large perimeter fence which is approximately seven feet tall with spikes preventing people climbing over.
I pause there because – to note that no doubt your state of intoxication, which I accept you were intoxicated, but it didn’t prevent you, nor did it cause you any injury in being able to scale a fence seven feet high with spikes on it and then drop neatly into the yard below. Nor did you have any difficulty, it seems, driving to Bentley to pay a visit to Ms Howlett.
The area is clearly marked as being a prison and not to enter. You asked a nearby woman as to where your partner was. The woman replied to the location of Howlett. You walked in the direction of the building as to where Howlett was. You exited the building and observed – sorry, Howlett exited the building and observed you. She yelled at you before returning inside the building.
Due to you jumping the perimeter fence a silent alarm had activated and the guards located you near the building. Then we have the incident with Mr R… taking place, after which you were led into the administration building and fell on the floor. Male guards stood around you whilst you lay on the floor.
You suddenly became angry and attempted to stand up. You stood up and spat at the victim, a prison officer. Spit has landed on the victim’s shirt and you again spat at the victim. The second spit also landed on the victim’s shirt, near his face. It’s a despicable act, Mr Brown. The victim – sorry, you then laid down on the ground and cried until police arrived.
Police attended and conveyed you to Cannington Police Station. You participated in an interview where you made, it says, full admissions. So they are the facts in relation to the incident inside the Women’s Pre-release Centre.
I turn now to the Rockingham offences, which are the subject of the second indictment. And the facts there, I’m just following the counts as they appear count 1 through to I think it is 5. On Friday, 20 March 2009 and this would have been whilst you were on bail for the grievous bodily harm matters, the complainants, a [JLF] aged 18 and a [NT] aged 19, both acquaintances of yours, went with you to the Vibe Nightclub in Rockingham.
And you were then ejected from there by security staff because you were intoxicated. And as you were being escorted from the premises you punched the glass panel of the double door exit just prior to the stairwell. The glass panel shattered and you cut your hand, causing it to bleed.
Ms F… offered to drive you home in her vehicle, a Hyundai vehicle. Ms T… was sitting with you in the backseat of the vehicle and Ms F… was driving. Ms F… drove to a service station in Warnbro to obtain some bandages. You then continued on your way along Safety Bay Road and along the way you became increasingly abusive and began physically assaulting Ms T...
Ms F… stopped the vehicle and told you to get out. You refused and leant over Ms T…, opening up her door. You then attempted to push her out of the vehicle by kicking her in the lower back. I’ve seen photographs of that. Ms T… was yelling for you to stop and calling for assistance from her friend. Ms T… got out of the vehicle and assisted her friend out of the car. I think that should be Ms F…, actually, got out of the vehicle and assisted her friend. Anyway, I’ve seen photographs of the extensive bruising to the back of Ms N… T….
I turn to count 3. You then grabbed hold of Ms F…, grabbed her by the hair and dragged her onto the ground. While she was on the ground you put your forearm across her throat, restricting her breathing and demanding the keys. There’s some issue about whether she had the keys or they were somewhere else. I see nothing in that. She also, I’ve seen from the photographs, sustained a nasty bruise above her eye as a result of a phone being thrown at her by you, as I understand it.
You then drove off in Ms F…’s car, leaving the two girls behind. And you then abandoned the car, set it on fire and went home. And I can see from the photographs the car was totally destroyed. Accordingly, restitution orders have been made in relation to that.
Aggravating factors, Mr Brown, are factors which, in the court’s opinion, increase the culpability of the offender. If circumstances of aggravation are pleaded and the offender convicted, then the offender is liable to a greater statutory penalty. If the circumstances of aggravation are not pleaded and the offender is convicted, then the existence of circumstances can be taken into account as aggravating factors. Those I’ve explained in exchanges with counsel at the Bar table.
You could have been charged with a far more serious charge of grievous bodily harm in that your victim was a prison officer and you would have faced a maximum of 14 years’ imprisonment. However, that was not pleaded and so you don’t face 14 years. But, nevertheless, I can take into account as aggravating factors and I do, that you attacked a prison officer who was carrying out his duties inside a prison and that makes the offence far more serious.
The assault upon the second public officer also occurred in circumstances where he was performing his duties as a prison officer inside a prison. And as I said, your spitting upon him on two occasions is a despicable act, and in my view, a serious assault.
Your victims in relation to the two Rockingham – in relation to the Rockingham offences, the two girls were defenceless. And these offences, as I’ve already observed, were committed whilst you were on bail, so that is an aggravating feature also that makes your culpability far more serious.
I’ve read a victim impact statement from Ms F… I’ve also read the depositions of Mr R…, Ms T… and Ms F… As I’ve explained to your counsel, you’ve not been charged with attempt to pervert the course of justice, so I make nothing of the claim by Ms F… that you sought to persuade her to provide the statutory declarations and so on and so forth. I make nothing of that.
I turn now to your personal circumstances and antecedents. You’re now aged 36. You are in a de facto relationship and have been so since 2007 with Ms Howlett who was in prison at the time of these offences. You have two children from earlier relationships. Your family history is detailed in the pre-sentence report.
You have previous convictions, I note, just reading the pre-sentence report, for assault and breach of violence restraining orders in relation to one of your other former partners. You acknowledged to the author of the pre-sentence report that you have struggled to maintain stable relationships with women, citing your drug use as a factor causing this situation. No doubt your undiagnosed mental health issues have also contributed to a certain extent to your violent behaviour.
You left school at 14. You sustained a back injury in 1997 and since 2002 you’ve been employed for three of the past eight years. You have a history of health problems. You were diagnosed with depression in 1998, so there has been – and that was related to your back injury and chronic pain.
The psychiatric report indicates you meet the criteria for borderline personality disorder and antisocial personality disorder. And there seems and I accept that that diagnosis has a causal connection to your behaviour on each of these occasions when you’ve attacked people. It doesn’t excuse it, but it provides an explanation and needs to be factored in by me. It’s something over which you have no control.
You also have a history of substance abuse problems and you need treatment for drug and alcohol abuse and depression. And I’ve read a number of references that were provided both in the past and to date by your counsel Mr Walls that show you have made attempts to rehabilitate yourself. But then you seem to fall back into your ways of drugs and alcohol to cope with your emotional issues and mental health issues, and so the positive gains that you make seem to get wiped out along the way and there’s just a relapse.
Your prior criminal record is not an aggravating feature of the offences for which you are being sentenced, but your record demonstrates that you are not entitled to any leniency for good character. I’ve already noted and you have convictions for assault, which shows you are both a violent and aggressive person.
You have convictions for stealing, selling methylamphetamine, criminal damage, stealing a motor vehicle, a number of other convictions for damage, possession of a weapon, breach of violence restraining order, escape legal custody, common assault, breach of violence restraining order, a previous conviction for assault public officer, resist arrest.
You’ve appeared in this court for an assault bodily harm in 1999 and got 18 months’ imprisonment. That was coupled with a burglary. And your record stretches back to a common assault back in 1994 before the Merredin Court of Petty Sessions. You’re now 36 years of age. You’ve been in custody since 26 March 2009, so any sentence that is to be imposed today will be backdated to that date. You’ve pleaded guilty and I accept at an early opportunity in the circumstances of this case. And of course that is to your credit and a mitigating factor for which you are entitled to a reduction of sentence that would otherwise be imposed upon you.
You’ve also cooperated with the police and participated in interviews, making partial admissions. So to that extent you’ve assisted the police. You’ve also demonstrated remorse by writing letters of apology to the prison officers concerned. I accept that.
And of course, another factor which I must regard as a mitigating factor is your undiagnosed psychiatric illness. You have mental health issues that when they’re combined with alcohol and drugs, put you on a course on which members of the community come off second best, there’s no doubt about that.
I am required to impose a sentence commensurate with the seriousness of the offences. The seriousness of the offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors.
In sentencing you I take account of the nature and gravity of your offending, as well as the statutory maximum penalty in relation to it; the circumstances of the commission of the offence and the aggravating and mitigating factors. As I explained, aggravating factors are those which, in the court’s opinion, increase the culpability of the offender, while mitigating factors are those which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
I must first decide the kind of punishment to be imposed and the Sentencing Act sets out the options as to penalties which may be imposed following conviction. The court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any one of the less severe options available. A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community otherwise requires it.
I’ve already described your antecedents, including your age, your early pleas of guilty, your remorse, your assistance with the authorities and the extent to which your undiagnosed mental health issues have contributed to your offending behaviour.
I must have regard to the purposes of imposing punishment, to punish you and to deter both you and others from committing offences in the future. If I reach a conclusion that a sentence of imprisonment must be imposed, I’m obliged to consider afresh whether or not a sentence of imprisonment should be suspended, as was being urged, or whether, having regard to the nature of the offence and the need for the protection of the community, an immediate sentence of imprisonment must be imposed.
In considering your culpability I bear in mind that the – you had consumed on each occasion a large quantity of drugs and alcohol before committing the Rockingham offences and the prison offences. The consumption of alcohol and drugs causes you to behave in a violent, aggressive and irresponsible manner.
You were out of control and you have mental health issues that – your intoxication impacts upon them. One leads to the other and vice versa. I do observe, though, that notwithstanding your level of intoxication, you were still able to enter the women’s prison, you were still able to, in the Rockingham offences, drive off and burn the car.
I accept that the prison entry was a spur of the moment decision because of an argument with your girlfriend. However, it’s not that spur of the moment because you were able to travel, after receiving a phone call, to the prison, climb, then jump the perimeter fence, confront prison officers who were going about their lawful duty.
The attack on both of the prison officers is despicable and deserves condign punishment, in my view. I accept you’ve written letters of apology and that shows some remorse in that way. I note that you’d also completed a term of parole earlier in 2008 before embarking upon the matters that occurred at the end of 2008 and early 2009.
I’ve carefully considered the matters raised in mitigation by your counsel. I’ve also had regard to the contents of the pre-sentence report, together with the psychiatric report. The pre-sentence report summary says this about you and I’m looking at – this is the earlier of the reports:
Mr Brown is 36 years old and was first convicted back in 1988. I note that he has four prior convictions for assaults that were variously incurred between 1994 and 2005. Mr Brown has demonstrated aggression in both intimate relationships and the wider community.
The origins for his aggression may partly reside in his exposure to bullying and abuse at the hands of his stepfather in that he may have learnt what he believed was the efficacy of aggression to control persons. His lack of consequential thinking to moderate his behaviour is also noted.
Previous psychiatric and psychological assessments make various references to Brown’s maladaptive personality features, such as difficulties managing his emotions, poor impulse and anger control problems and poor coping strategies.
Further challenging his capacity for self-management has been his long-term battle with drug and alcohol abuse overlaid with bouts of depression and anxiety, and the current psychiatric report suggests the need for assertive treatment in these domains.
Mr Brown appears to have developed a tendency to manage his emotions by both licit and illicit drug use and alcohol abuse, despite such behaviour increasing his risk of aggressive and antisocial conduct. However, I sense that his desperation to avoid feelings of depression, stress and anxiety, which he feels is ameliorated by substance abuse, continues to reinforce his behaviour.
However, to his credit, he has previously sought substance abuse counselling and psychological counselling at various intervals between 1991 and 2008, albeit without lasting effects, although these actions are indicative of a level of motivation to change his behaviour.
The psychiatric report concludes in this way:
In short, the offence occurred in the context of alcohol abuse and polysubstance abuse. As I have discussed, Mr Brown’s consumption of alcohol and substances prior to the offence was extreme. Mr Brown reported a sense of embarrassment, regret and remorse in relation to his actions.
From a psychiatric perspective, I noted that there was a long history of a relatively chronic depressive illness of fluctuating severity. He reported the presence of significant depressive symptoms for a number of years and from the history I obtained, the severity of his depression was moderate to severe at the time of the offences.
Mr Brown also gave a history consistent with marked personality pathology and would fulfil the diagnostic criteria required for a borderline personality disorder and an antisocial personality disorder. In my view, Mr Brown’s relatively complex psychopathology contributed to his actions at the time of the offences.
And so I must accept that as a mitigating factor. It’s causally related. It goes on to say:
In relation to the management and recommendations it’s my view that the following need to be addressed. The substance abuse dependence and alcohol abuse dependence need to be assertively addressed. It would be appropriate to consider yet another period in residential rehabilitation.
In my view, Mr Brown must remain on antidepressant medication into the long term. He gave a history that his mental state improves when he’s on antidepressant medication.
I’m sure that doesn’t go well with alcohol, though, Mr Brown, nor drugs:
The input of a clinical psychologist may also be of some benefit in addressing unresolved background issues. In relation to prognosis it is my view that Mr Brown remains at risk of further impulsive aggression or violence.
And that’s a real concern, Mr Brown:
It’s important that dynamic risk factors such as the substance abuse and the depressive component to his presentation are addressed in order for there to be any possibility of decreasing his risk of future violence.
I’m sure that it’s been explained to you by Mr Walls, but you’re at risk of violence (sic) offending towards others unless you address these issues. They’ve been laid out there for you. I have considered all of the sentencing options, including suspended imprisonment. I must be positively satisfied that the option of suspending imprisonment and each remaining lesser option is not appropriate before I can impose a term of immediate imprisonment.
I conclude that in view of the seriousness of the offences a term of imprisonment is the only appropriate disposition. In fixing the term of imprisonment I am mindful of your early pleas of guilty, your remorse, your depressive symptoms were moderate to severe at the time of the offending.
Further, that your relatively complex psychopathology contributed to your actions and at the time of the offending on both occasions in 2008 and 2009 your mental health issues were no doubt exacerbated by the extreme amounts of alcohol and drugs that you used.
I will, after determining the appropriate terms of imprisonment, deal with the issue as to whether I should suspend the term. I must first fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality.
I will announce the individual sentences I intend to impose and then announce how I will structure the sentences to take account of the totality principle. In each case I will announce the sentence having regard to the plea of guilty and mitigating circumstances that I have outlined and which have been drawn to my attention.”
[His Honour then announced the individual sentences, and continued:]
“ I have carefully considered the extensive material before the court in relation to whether the term of imprisonment should be suspended. As I have said, I’ve come to the view that the only appropriate disposition, taking into account, particularly, the need for general and personal deterrents (sic), is a term of imprisonment.
Having reached that view it is necessary that I carefully consider whether or not, relevant to that material in all the circumstances, the sentences to be imposed should be suspended. And this requires that I consider anew all relevant circumstances and this I have done, Mr Brown.
In all the circumstances, after having revisited all relevant factors and there has been a lot of material placed in front of me by your counsel and by the reports that have been sought in relation to you, and having revisited all relevant factors I am not persuaded that given the nature, gravity and extent of your offending that suspension would be warranted. The offences are too serious, in my view, to allow for suspension.
Accordingly, the terms of imprisonment imposed are as follows: grievous bodily harm two and a half years’ imprisonment, enter prison without permission six months’ imprisonment concurrent, assault public officer 12 months’ imprisonment cumulative on the grievous bodily harm, criminal damage six months’ imprisonment concurrent, assault occasioning bodily harm on Ms T… 12 months’ imprisonment cumulative, assault occasioning bodily harm for Ms F… 12 months’ imprisonment concurrent, steal a motor vehicle six months’ imprisonment concurrent, criminal damage by fire six months’ imprisonment cumulative, making a total of five years’ imprisonment.
The sentence is to date from 26 March 2009. You are made eligible for parole. As this term is greater than four years you are eligible to be released on parole when you have served two years less than the sentence imposed. In other words, three years’ gaol before you will be considered eligible for release on parole. …” (G11)
The Applicant’s Evidence

The applicant tendered in evidence various letters written by him for the purpose of this proceeding and filed on 3 April 2012, and he confirmed that their contents are true and correct (Exhibits A1 and A2).
In one letter the applicant sought to explain the circumstances of his more serious offending as follows:
“ …
1999 to 2000
Breach of violence restraining order
Assault to cause boldly harm
Aggravated burgarlery
During this time of my life I was living with the mother of my youngest child’s mother P… M… I had been with my X partner since 1995. Me and my X partner were sort of getting on well up to I did a back injury in 1997. After I did my back injury our relationship started to go down hill very fast. I could not go back to work and was on workers compensation. My back pain was in a bad way. Due to me not able to work we were in each others face and we just had a baby daughter C… Life at home got pretty bad. I was going through a lot as depression started to hit home very fast. I was on all sorts of drugs for pain and depression. My pain in my back got that bad I had to get on the morphine. My X partner had to get restraining order on me because we were always fighting. During the restraining order I would go and see her and when things got bad again she would try and breach me. We tried to patch up our relationship for our daughter up to 2005 but it just was never going to work because I couldn’t come to grips with my pain and couldn’t perform for her in bed, so I felt low and very depressed because I had lost my manhood. The time of the incident we were living apart but tiring to patch up our relationship. We had a fight over the phone so I tried to go over there that night to say I was sorry. When I got there, there was no one home. The next day my sister K… S… had pulled out the front and beeped her car horn. I went out the front and my sister had told me that she seen P… at the shops and she had love bites all over her neck and told my sister to tell me that she had got her ass fucked off. At that time I fell to the ground and experience a panic attack. I went to the phone to ring P… to see what was going on and she just started screaming that she had got her ass fucked all night and that she had orgasmed all night so I just said you slut whore and hung up. Well I let it go for a week and went down Perth to see my mate. My mate was a drug dealer in methamphetamines so I got on the speed all weekend. I stayed up for three days with no sleep. I jumped on the bus to go back home to Rockingham. When I got home I sat in my house and started to think twisted thoughts about my X partner. Because the house that I lived in was where I brought my daughter up. I decided to walk to P… house to see if I would catch her out with this bloke because I wanted to smash his head in. When I got there I knocked on the door and there was no answer. So I went around the back and there was P… frozen looking at me on the lounge. I told her to come to the window and talk to me about it. She come to the window and opened it a little and put the lock on. We spoke and then I told her I want to see my daughter to see if she was alright. At this time it would have been 9.30 at night. She said know and that she was scared because my eyes were scary. She said she was going to run to the front door and start screaming. Bang I snapped put my hand through the window got in and punched her twice. She fell down then I realized straight away what I had done so I picked her up and said sorry. She said lets go back to my house and talk over a cup of tea. We got my daughter and put her in the car while she was still asleep. When we got back to my house I got out of the car and as I got out she took of and screamed out I loved you. Well the next day I was arrested. During the time of the assault I did not once kick her like she said in the statement. I got sentence to18 months for the agg burg. I did 7 months and then got out and completed my parole.
Not long after we got back together and well I should have realized there was bad blood due to the assault and I know that she had another relationship. We tried until she put another restraining order on me and I once again fell for it and seen her during the time I had the restraining order on me. I went around to see my daughter at her mums I was drunk and P… brother attacked me so I defended myself and won the fight. During the fight P… had smashed a garden gnome over my head. So I got up and ran to the car in which my neighbours’ was driving. A couple of days later P… had said I assaulted her. Her brother didn’t lay charges. I took it to trial and lost. This was around 2004 I’m not to sure. But I should have never lost that trail as P… had no medical evidence to back up her case but the judge said that she was confident on stand and went on that. So I got done for a common assault that I never done.
2005
Steal motor vehicle
Criminal damage
I was sleeping with married women that I met at tafe. I met this woman R… in 2002. I was never in love with this woman as deep down inside I had no respect for her because she was married. Well this woman supplied my drug habit until the incident. I was pretty much this ladies toy boy. I slept with her for money. This lady started to develop feelings for me. In 2004 I was coming down hard of the drugs and feeling depressed because I still had feelings for my X partner P… Well we had a fight and I jumped in her car smashed a letter box with the car and took of to my place. Well the police arrested me again and tried to drop all these charges on me. Well R… never showed up to court and some charges were dropped in court. I pleaded to the steal motor vehicle and criminal damage and got 6 months prison. At this time I had all ready done 8 months. But the judge didn’t back date me so I done over 12 months. During this time in jail I still had the drug charges on me which I have explained at the bottom. I got parole and my bail reinstated for the drug charge got out and completed my parole. I was using a lot of the drug ice and I was using it very hard because R… had the money to pay for it.
2003
Drug trafficking
15 months Prison
During this time of my life I was still very depressed as I never really got my depression dealt with. I was asked by a mate to stand in a laundry. While a drug deal went down and if anything went wrong to help him out. My mate had giving me a knife not to use just to hold. I had a meth problem at the time as it was my friend and while on it, it took away my emotions and depression. My mate payed me a gram of speed and once the deal was done $500 in payment. Well the person they sold to was an undercover cop and was a three month drug operation. When I was caught they found the knife and said that I was going to use the knife if anything went wrong. Well that was a lie. My mate as far as I’m concerned set me up and he sort of knew there was something going on that day with police and wanted me to go down with him that is why he told me to hold the knife. I pleaded after two years because my lawyer told me to and got 15 months. I only did 3 and a half months because before that I did 12 months dead time so my lawyer asked for me to get it back dated and the judge back dated 3 and a half months. I had a drug problem at that time. I was still dealing with my depression and hung around the wrong people. I did my time got parole and completed it.
2008 to 2009
GBH & common assault & trespassing
2 x ASBH & Steal motor vehicle, criminal damage by fire
In September of 08 I jumped a prison fence and assaulted a prison officer by punching him in the face. I also spat on another prison officer. During this time of my life once again I was very depressed and was trying to deal with it and my mental health was undiagnosed so I was prescribed a lot of benzoids such as valium for anxiety. I was addicted to all this medication and taken as much as 50 valium a day. I also had a meth and heroin problem as well. I was with my girlfriend Sandra Howlett at the time. She had gone to prison for old charges in May 08. I really took a liking to this girl and when she went away I got really depressed and really went hard on illicit drugs and licit drugs. I was working at the time and sort of coping but deep down was a mess. It was my girlfriend’s birthday at the time and we were fighting on the phone because I was scattered. I ended up driving to the prison and did what I did and don’t really remember much of the incident. I loved my girlfriend and truly missed her.
I ended up getting bail and tried to sort my life out by going on the soboxzone program. This was to stop me using heroin. I was really doing well and my girlfriend was released from prison and we were back together. Well she wasn’t out for long until she committed another crime and went back to prison. Well the depression started to kick back in. I bumped into an old mate from jail at the bus stop. I knew this was a bad idea but went along with it. I started drinking with this bloke everyday and was fighting a lot at the pubs. One day I bumped into one of Sandra friend J… who worked at the IGA shop just down the road from me. We started to hang out. I would give J… my house key and she would clean up my house and it was some where for her to go to because she lived at her mums. I never was in a relationship with this girl as I was in love with Sandra. After a month I could see this girl stared to like me more than a friend. She stared buying me things and driving me around. She was always at my house but I still only looked at her as a friend. One night I was at the pub drinking with my mate all morning and night. J… had rang me and asked if I wanted to go out with her to the nite club with her and her friend. She picked me and my friend up and we went back to my house and I took another 20 valium. We went out and I ended up getting kicked out of the nite club and on my way out put my hand through a window and cut all my hand. Me a J… and her friend N… left and drove of. I really don’t remember much more because I blanked out but I apparently assaulted N… and J… and took her car and burnt it. Once again I was charged with a string of charges. I ended up in jail and I really can’t remember but not long after J… had come to see me at hakea prison with her mum. We spoke and she had told me that she had lied by saying I chase her down to get the car keys of her and that I never threaten her and I never assaulted N… I ask her to tell the truth and she did by writing stack decks so I got aggravated robbery dropped and threat to harm dropped. She never wrote a stack deck for the assault on N… so I just pleaded guilty. With both charges together I received 5 years.
Everything I have written is true.” (sic)
Another of the applicant’s letters states as follows:
“ …
I really don’t remember much of my crimes form the age of 14.
But I can give you an out look of what I was probley feeling and emotions at that stage of my life.
When I was 7 years old we emigrated from England and were placed on a farm called Fairbridge. It was a place for us to stay while my mother looked for a house.
During this time I was split up from my siblings and place in separate houses.
As a 7 year old and being very close to my brother and sisters this was very hard on me.
After a couple of weeks my mother told me she had to leave. Well I didn’t take this to well and cried for days.
My mother would come back now and then to visit and being very close to my mum it was always hard to say bye.
I really don’t know how long this went for but eventually my mother had found a house for all of use to live inn.
My mother struggled as a single parent looking after all of us kids.
She eventually met my step father Steve Mcnelly.
It was good for the first year because we would get Christmas presents as Steve was good support for all of us.
Then they started fighting. The fights got worse.
My step father ended up buying a house for all of us.
I was told once they got married the fights would stop. They got worse.
I never felt secure at home because I was always chased out or left because I was scared.
I was only 13 living in my mate’s car or staying at my sisters. I was always roaming the streets looking for some where to stay.
I was smoking a lot of dope and drinking because the crowd I hung around was all doing it.
Life as a kid was hard for me as I never had a stable home.
From there on I suppose I started to do crime to survive.
I know as a kid I carried a lot of anger because as a kid that was all I was shown.
My life was very hard growing up in a violent home.
I was bullied by my step father and really didn’t have a mother that cared.
I don’t blame them because now they really try there best and help me out as best as they can. I know they are embarrassed of there past and I fully forgive them. I believe they blame there self’s for me being in jail but one thing I have learnt is stop playing the victim and stop living in the past and forgive and forget. Because if I don’t I will never move on in life.
Since doing the VOTP course it has shown me ways to deal with my emotions in ways not to act out by acting in violence. I really truly believe that when I walk out the gate my life will be different because I will make it different.
I beat my depression by taken an antidepressant for almost two years. I have stopped that medication over 10 months now and have not falling back into a state of depression. Yes I feel down now and then but deal with it with the tools I have taken from the course.
I have also had a serious neck injury. I have had the operation and have not got much success out of it. I do not know how this injury occurred only know since being I jail it started to happen.
I now have a spinal cord injury which causes me lots of nerve pain and also has caused a nerve disorder called colonise.
I find it very hard to walk and have been told that I will need a cain to walk with.
I still have on going medical appointments for this injury.
This injury has taken a lot of my quality of life away.
I haven’t had a good run since being in jai but I still find my composer.
I haven’t had any charges and I class myself as a model prisoner.” (sic)
In cross-examination the applicant was referred to a statement he had made in a letter to the Department in August 2011, in response to the notice of intention to consider cancellation of the visa, as follows:
“ … I know in my mind that I will never take illicit drugs ever again and I will never put myself in situation to end up back here in jail I can promise myself and the community of Australia. …” (sic) (G8, p 65)
It was put to the applicant that, in previous letters to the Department in November 2006 and May 2007, he had also stated that he had changed and had promised never to re-offend but that he had subsequently committed serious offences while under the influence of alcohol and drugs. He acknowledged that that was the case.
He described his family as “caring” and “supportive” but he added that he had “pulled [himself] away from them” because of his drug-taking. He said that he had been a “binge user”, rather than a heavy user, of drugs for about 20 years up to the commencement of his present period of incarceration in March 2009.
He said that he maintained contact with his biological father (who remained in England) when he was 10–11 years old but that he has had no contact with him in his “adult years”. As regards members of his immediate family in Australia, he said that:
·he has “limited contact” with his 18-year-old daughter, and he last saw her in 2011 when she visited him in prison;
·he “frequently” talks with his 15-year-old daughter by telephone and she has visited him many times in prison;
·he “frequently” speaks with his mother by telephone and he also speaks with his brother and sisters by telephone.
As regards his employment history, he said that he had worked, from the age of 14 years, in various jobs including delivering bread, plastering, factory work, roof tiling. He said that in 1997 he injured his back while working for Brambles and he was off-work for the next five years, and that he had worked “on and off” since 2002. He acknowledged that since then he had struggled financially and has had to rely on Centrelink payments.
As regards his mental health, he said that he was first diagnosed with depression in about 1998 following his back injury. He acknowledged that in a 2009 pre-sentence report he had been described as having “clear antisocial traits such as anger control problems, possible impulsivity, poor coping strategies, resorting to illicit drug use and intoxication”. He also acknowledged that that report referred to his having attended substance use counselling in 1991, 1995, 2004, 2006 and 2007–2008 and that his attempts to “address his substance abuse over the years” have not had “any enduring success to date”. He said that he did not recall all of those counselling attendances and he acknowledged that he continued to use drugs throughout that period. He added, however, that he has now “beaten” his depression and no longer takes antidepressants.
Asked what his plans for the future are, in the event that he is allowed to remain in Australia after his release from prison, he said that he plans to start working and “looking after [his] daughter properly” and to be “a better family member”. He said that, although he was still in a relationship with Sandra Howlett, he would live with his mother when released from prison.
The Evidence of the Applicant’s Witnesses
Stephen McNelly
Mr McNelly confirmed that he had written a letter, dated 3 April 2012, for the purpose of this proceeding and that its contents are true and correct. That letter states as follows:
“ I am writing to you to show my support for my stepson Nicholas Brown and ask for leniency. He is before you today to decide his suitability to remain in Australia. I know that circumstances will suggest that Nicholas has not shown any real willingness to change his ways, but I can assure you that the truth is actually the opposite.
Nicholas has tried very hard many times to sort out his issues and for reasons we are still searching for he gets himself into trouble again. When he is free of drugs and not trouble (sic) with depression he is a bright and friendly person.
I will not waste your valuable time trying to justify why Nicholas gets himself into trouble, there are issues that we would like to seek professional help with and will start that process upon his release from prison. I would like to say to you that there is a strong family here in Australia for Nicholas, there is none in England. Nicholas also has a young daughter here in Australia and although he is in prison they are still very close. My wife and I are prepared to take onboard any recommendations from you and will make you a promise that we will do whatever is required to give Nicholas a final chance to be a contributing member of society.
As I said above, we will be seeking professional help to find out what troubles Nicholas and will make sure that any treatment is maintained, we will also work with Nicholas to get him back into employment as quickly as possible, and I will help Nicholas enter training programmes that will help with this.
Our whole family are placing ourselves at your mercy and hope that you can find it in your heart to grant us and Nicholas this final chance.” (Exhibit A3)
It is unnecessary to refer to Mr McNelly’s oral evidence in detail in these reasons.
Georgia McNelly
Mrs McNelly confirmed that she had written a letter, dated 2 April 2012, for the purpose of this proceeding and that its contents are true and correct. That letter states as follows:
“ My name is Georgia McNelly; I am the mother of Nicholas Ronald Brown. Nicholas is before you today to learn if he will have his Australian Visa revoked because of his past criminal records.
It is with much sorrow that I have to write this letter pleading mercy from this tribunal for my son, Nicholas. I know that my son has done much wrong and he (sic) nor his family deny that. However, we also recognize that his behaviour is due to the nature of his addiction and an undiagnosed depression disorder. He has been addicted to drugs since he was a young teenager, taking drugs was initially a way of dealing with all of the changes in his life, he had a lot of difficulty accepting my second husband Stephen McNelly and Stephen did not do enough to try and build Nicholas’s trust at an early impressionable age.
Nicholas does suffer from sever (sic) depression, I have witnessed this first hand many times, during these times of depression seems to be when he takes to drugs the most. I am fully prepared to pay for proper diagnosis and treatment upon Nicholas’s release from prison so that he will not feel the need to turn to drugs again.
This breaks my heart every day. I am sure when Nicholas has his wits about him he is cognizant of the pain he has caused me and his family.
Australia is the only home that Nicholas has known, his entire immediate family are here and they have all pledged their full support to ensure Nicholas makes a success of any further leniency shown by this tribunal.
The worry of what will happen is truly making me sick, I am already of very poor health and rely on the use of oxygen for day to day activities. In the past 18 months our family has had to deal with 3 very sad deaths, my sister (Nicholas’s auntie) passed away recently aged only 47, then my Father (Nicholas’s grandfather) passed away, finally my young nephew (Nicholas’s cousin) committed suicide suffering from depression aged only 31. All of this sorrow has taken its toll with our family and I just can’t bear to think what will happen if we lose Nicholas as well.
Please can you give our family one final chance to turn things around, I promise this tribunal that my husband and I will do everything in our power to ensure that Nicholas makes the most of any leniency shown by you.” (Exhibit A4)

In her oral evidence Mrs McNelly said, as regards her health, that she suffers from emphysema, lung disease and a form of epilepsy, and that she would probably die within the next two years.
The applicant’s daughter, [C]
The applicant’s daughter, [C] (who was born in December 1996), confirmed that she had written a letter, dated 27 December 2010, in support of her father. That letter states as follows;
“ I believe that my father Nick Brown has committed crimes here in Australia, but he is my father. I couldn’t bear to lose him. He has paid for these such crimes in imprisonment and paying fines. If I were to lose my father if he was to get deported to England, I would lose not only my father but a part of myself. Also Nick will lose his daughter and also his home Australia.
I am writing this support letter because I love my father. If he was deported to England I am afraid I will never see him again. I wouldn’t be able to visit him as I cannot afford the expenses. I am also afraid if when I do come up with this sort of money my father may have forgotten about me or be deceased (dead). If this was to happen I don’t think I would be able to keep myself together.
Every time I seen my father he made me smile and always seemed to cheer me up when I was down with his funny but stupid jokes. He is a friendly person, all my friends like him as well. Thank you for reading my support letter.” (G8, pp 74–75)
In her oral evidence [C] said that she loved her father “with all [her] heart”, and that she did not know what she would do if she lost him, adding “probably something stupid”.
In response to questions from the respondent’s representative, she said that, although she had lived all her life with her mother, she had stayed with her father “a few times when [she] had problems with [her] mother”.
In response to questions from the Tribunal, she said that she is aware that there had been physical violence between her father and mother but said that she had never witnessed it, adding that her father is “like a teddy bear”. She said that she needs “his support and the love that he brings” her and that, if he were to leave Australia, it would “destroy [her] life” and she “would not be able to function”.
Additional Material Tendered by the Applicant
The applicant also tendered in evidence a letter, dated 3 April 2012, from Paul John Brown (Exhibit A5). That letter states as follows:
“ My name is Paul John Brown; I am the older brother of Nicholas Ronald Brown, he also has 2 elder sisters. I am writing on behalf of Nicky to plead for leniency from this tribunal.
I know that Nicky has put himself in this terrible position and I am very angry with him for that. I also know that it is only through the use of drugs that he does what he does. When Nicky is clean from drugs, which has happened several times he is a great person and a great brother.
Nicky was only a baby when we were all brought out to Australia, when we arrived here we were only with our mum for a very short time and then we were taken to a place called Fairbridge Western Australia. This separation was very hard on Nicky being the youngest, he was very upset at leaving our dad in England and then when we arrived in Australia he was taken away from our mother, the rest of us knew that this was only for a short time (approx 3 months) but Nicky could not accept that. Even when we did return to our mother Nicky never believed that we would be allowed to stay with her this time.
Not long after we all returned home our mother met someone, Stephen McNelly (now our stepfather). Nicky had trouble accepting Stephen and was always upset. Nicky used to say to me that Stephen would take our mother away from us.
When in high school Nicky started taking drugs, he has struggled with them ever since. I love my brother and cannot begin to imagine that he will be taken away from us; I have discussed this with my parents and can assure you that I personally and along with the rest of my family will do anything and ever (sic) thing to make sure that Nicky does not waste any lenience shown by you.
There is no family that knows Nicky in England, our father has never contacted us, since the day we left England he has never contacted any of us. In England Nicky will not have the support that only a family can give, he will not get the medical help that he needs to sort himself out and will struggle to maintain a functional life. He has a daughter here in Australia that will suffer emotionally if he is sent away, even though he in (sic) jail he is a big part of [C’s] life.
I am also very worried about the effects this will have on my other, she is very ill and has had to deal with 3 deaths in our family over a short period of time, all of which has hit her hard and I feel this would be too much for her.
The best chance Nicky has of sorting his issues out is to remain in Australia and have the support of his family. After speaking with Nicky recently I believe that this has opened his eyes and that with our support he will succeed. I pledge to you that this is not a desperate attempt to keep Nicky here but a genuine promise from all of our family that we will do everything to make the difference.”
The Tribunal note that Mr Brown was not required by the respondent for questioning and he did not give oral evidence.
Additional Relevant Evidence
The G Documents (Exhibit R1) and the Respondent’s Supplementary Documents (Exhibit R2) include further relevant material which will be referred to in the course of the following analysis.
Analysis
Application of the “character test”
By reason of the fact that the applicant “has been sentenced to a term of imprisonment of 12 months or more” – most recently, on 5 February 2010 – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2)Decision-makers should only take into account directly relevant considerations.
…”
The Primary Considerations
Paragraph 10 of Direction [41] sets out the primary considerations as follows:
“ 10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
Paragraph 10.1 of Direction [41] states:
“ 10.1Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
The objectives set out in Part 1, para 5 of Direction [41] are as follows:
“ 5.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
Paragraph 10.1.1(1) of Direction [41] states:
“ 10.1.1 The seriousness and nature of the conduct
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists (in subparas (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):
“(d)     grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
…
(f)the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;”.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i)     the number and nature of offences;
(ii)     the period between offences; and
(iii)    the time elapsed since the most recent offence.
(4)The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”.
As previously noted, the applicant has been convicted of 65 offences in the period from February 1988 to February 2010, the most recent offences having been committed by him on 21 March 2009. He has been in custody from 26 March 2009.
As is apparent from the applicant’s recorded criminal history (summarised in paragraph 9 above), the applicant has consistently committed offences throughout the period 1998 – 2009, including several serious offences involving violence for which custodial sentences were imposed, namely:
·assault occasioning bodily harm, for which he was sentenced to 18 months’ imprisonment on 5 November 1999;
·grievous bodily harm (on 26 September 2008), for which he was sentenced to imprisonment for 2 years and 6 months on 5 February 2010;
·assaulting a public officer (on 26 September 2008), for which he was sentenced to 12 months’ imprisonment on 5 February 2010, and
·two counts of assault occasioning bodily harm (on 21 March 2009), for each of which he was sentenced to 12 months’ imprisonment on 5 February 2010.
Other serious offences for which the applicant received custodial sentences include:
·aggravated burglary, for which he was sentenced to 18 months’ imprisonment on 5 November 1999;
·taking part in the sale of a prohibited drug (methylamphetamine), for which he was sentenced to 15 months’ imprisonment on 13 April 2007;
·two counts of criminal damage, for each of which he was sentenced to 6 months’ imprisonment on 5 February 2010;
·stealing a motor vehicle, for which he was sentenced to 6 months’ imprisonment on 5 February 2010.
Additional offences involving violence against the person committed by the applicant, for which he did not receive a custodial sentence, include:
·common assault, for which he was fined $400 on 17 February 1994;
·assaulting a public officer, for which he was fined $1,000 on 30 September 2004; and
·common assault, for which he was subjected to an intensive supervision order for 12 months on 18 January 2005.
While the applicant’s total criminal history is a matter of serious concern, the abovementioned offences involving violence, for which he received custodial sentences on 5 November 1999 and 5 February 2010, “are of special concern to the welfare and safety of the Australian community” (see para 10.1.1(1) of Direction [41]). Furthermore, the abovementioned offences of aggravated burglary, taking part in the sale of a prohibited drug, criminal damage, and stealing a motor vehicle, for each of which he received a custodial sentence, are, in the Tribunal’s opinion, serious offences, within the meaning of para 10.1.1 of Direction [41]. In forming that opinion the Tribunal has had regard to the remarks made by each of the sentencing judges on 5 November 1999, 13 April 2007 and 5 February 2010, including the mitigating factors referred to by Muller DCJ on 13 April 2007 and by Stone DCJ on 5 February 2010.
The risk that the conduct may be repeated
Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
The applicant’s total recorded criminal history is summarised in paragraph 9 above and has been discussed in paragraphs 40 – 42 above. That history indicates a pattern of consistent offending from 1988, and especially in recent years, with convictions recorded in each year from 2003 to 2008, his most recent offences having been committed in September 2008 (including his most serious offence of grievous bodily harm) and March 2009 (for which he was sentenced on 5 February 2010).
It is also notable that the applicant’s criminal history includes several convictions of offences involving breaches of judicial orders, namely:
·     two breaches of a community service order (2 July 1993);
·     breach of bail (21 November 1995); and
·     four breaches of violence restraining orders (8 June 1999, 5 November 1999, 18 January 2005, 24 January 2005).
The Tribunal also notes the following psychological/psychiatric reports prepared for the court for sentencing purposes:
·a report of Ms Petra Muhlfait, Clinical Psychologist, dated 12 March 2007, which concludes as follows:
“ …
Mr Brown has reportedly experienced past childhood neglect, physical abuse and witnessed domestic violence. His test results indicate residual trauma symptoms, which may well be linked to these reported experiences. He is suffering from bouts of Depression linked to a chronic pain problem. He experiences mood swings, impulsivity and experiences generalised anxiety when faced with life stressors. He has a higher than average need to rely on others to have his needs met whilst not trusting others readily. These issues, coupled with his drug abuse can impact on his offending behaviour choices.
All the above factors point an (sic) elevated risk of re-offending in the future. Some of his risk factors may be amenable to and mitigated by Mr Brown committing to counselling and remaining drug free.
…
SUMMARY
Mr Brown has a lengthy criminal and drug history. Reported childhood exposure to traumas and bouts of adult depression are noted. Risk factors suggest an elevated risk of re-offending. He has diverse treatment needs, which if successfully addressed may serve to reduce his risk of re-offending.” (Exhibit R2, pp 94–95);
·a report of Dr Sam Febbo, Consultant Psychiatrist, dated 12 October 2009, which concludes as follows:
“ …
Summary and Opinion
Mr Brown was assessed for the purpose of a presentence psychiatric report in relation to the offence of ‘Grievous Bodily Harm’. The history I obtained from Mr Brown in relation to this offence has been discussed in detail above. In short the offence occurred in the context of alcohol abuse and polysubstance abuse. As I have discussed Mr Brown’s consumption of alcohol and substances prior to the offence was extreme.
Mr Brown reported a sense of embarrassment, regret and remorse in relation to his actions.
From a psychiatric perspective I noted that there was a long history of a relatively chronic depressive illness of fluctuating severity. He reported the presence of significant depressive symptoms for a number of years and, from the history I obtained, the severity of his depression was moderate to severe at the time of the offences.
Mr Brown also gave a history consistent with marked personality pathology and would fulfil the diagnostic criteria required for a borderline personality disorder and an antisocial personality disorder.
In my view, Mr Brown’s relatively complex psychopathology contributed to his actions at the time of the offences.
Mr Brown reported aspects of his childhood or background in particularly negative terms. It is likely that these issues also have had a causal relationship with his current psychiatric presentation.
In summary, and using a DSM-IV diagnostic framework, the presentation on Axis One (clinical disorders) is in keeping with a major depressive illness of fluctuating severity. There is a history of substance abuse/dependence and alcohol abuse/dependence. On Axis Two (personality disorders and mental retardation) I note the presence of significant personality pathology including a borderline personality disorder and an antisocial personality disorder. On Axis Three (or physical conditions) I note the presence of chronic lower back pain. On Axis Four (psychosocial and environmental problems) I note the past history of physical abuse. There is considerable stress related to separation as one sees in an individual with a borderline personality disorder. On Axis Five (Global Assessment of Functioning) I note that by the time of my interview there had been a significant improvement in Mr Brown’s mental state and his current GAF scale score would be in the region of 70 with ‘some mild symptoms’.
In relation to management and recommendations it is my view that the following need to be addressed.
1.The substance abuse/dependence and alcohol abuse/dependence need to be assertively addressed.
It would be appropriate to consider yet another period in residential rehabilitation.
2.In my view Mr Brown must remain on antidepressant medication into the long-term. He gave a history that his mental state improves when he is on antidepressant medication.
3.The input of a clinical psychologist may also be of some benefit in addressing unresolved background issues.
In relation to prognosis it is my view that Mr Brown remains at risk of further impulsive aggression and violence. It is important that dynamic risk factors such as the substance abuse and the depressive component to his presentation are addressed in order for there to be any possibility of decreasing his risk of future violence. …” (Exhibit R2, pp 108–109)

A Department of Corrective Services Statement of Substance Use Test Results in respect of the applicant indicates that urinalysis tests, conducted during his present period of incarceration, on 1 October 2009, 1 March 2010, 2 March 2010, 13 April 2010 and 23 November 2010 all produced negative results for all specified substances (see G17 and Exhibit R2, p123).
A Department of Corrective Services Individual Management Plan (Approved), dated 6 March 2012, states as follows:
“…
2.4 Prisoner Behaviour
Brown transferred from Bunbury Regional Prison to Casuarina Prison on 28/09/2011 to facilitate medical appointments at Sir Charles Gardiner (sic) Hospital. Brown returned to Bunbury Prison on the 14/02/2012 and has been housed in Unit 1 (Maximum) since this date due to medical alerts stating Brown is not to be bedded in a top bunk. Unit Staff report that Brown is generally a quiet and polite individual who does not come to their attention for any adverse reasons. Brown is also noted as maintaining a reasonable standard of cell and personal hygiene.
Brown was previously employed as a Unit 3 Cook/Cleaner at Bunbury Regional Prison from 20/07/2011 to 13/09/2011. Due to Brown being transferred to Casuarina Prison on 2 occasions for medical appointments and his medical issues he has not held employment since the 14/09/2011. On the 02/03/2012 Brown commenced employment in Education at Bunbury Regional Prison and is currently undertaking Business Studies. Brown’s tutor reported that Brown has studied Business in the past and reflecting on his previous participation and short current length of time he has been attending Education Brown is not considered a management problem within the classroom, completes all given tasks given to him to a reasonable standard and is polite towards his tutors and fellow prisoners.
…
4 Rehabilitation and Re-Integration
4.1 Main Intervention needs
Cognitive Skills, Violent Offending, Addiction Offending
Comments: Brown was assessed by the Hakea Treatment Assessors on the 23/02/2010 with the following intervention recommended:
VIOLENT OFFENDING – High Intensity Violence Program
Brown was assessed as a suitable candidate for inclusion in the High Intensity Violence Program. Completed at Bunbury Regional Prison on the 22/07/2011.
COGNITIVE SKILLS - Think first - Medium Intensity
Brown has been assessed as a suitable candidate for inclusion in the THINK FIRST program. Booked Q4 2012 at Bunbury Prison.
SUBSTANCE USE – Pathways - High Intensity
Brown has been known to use illicit and licit drugs to help him deal with mental health issues, however this frequently leads to his offending behaviour. Book for PATHWAYS Q2 2012 at Bunbury Prison.
4.2 Specific Parole Issues
On 15/02/2012 the Prisoners Review Board denied Brown’s release to parole at his own request, Brown is now serving to his EDR 25/03/2014.
…” (Exhibit R2, pp 47,48)
Having regard to the material referred to in paragraphs 48, 50 – 53 above and to the applicant’s own evidence, the Tribunal is satisfied that the applicant, having sought and attended substance abuse counselling in the period 1991 – 2008 but having consistently relapsed after such counselling and re-offended, has finally come to understand the destructive effects which substance abuse and offending have had on his life to date, and will continue to have unless he ceases to engage in such behaviour in the future. In the Tribunal’s opinion, the substantial sentence of imprisonment which the applicant is presently serving, and the various substance use programs, and especially the Violent Offending Treatment Program, which he has completed during his present period of incarceration, together with the serious impact of the decision to cancel the visa, have greatly contributed to that understanding on his part. In the Tribunal’s opinion, he appears to be genuinely motivated earnestly to try to change his self-destructive behaviour and to cease to engage in substance abuse and to lead a law-abiding life in the future. Whether he will ultimately be successful in achieving those goals is, however, another question, especially having regard to his history of relapsing and re-offending.
At the hearing the applicant frankly acknowledged that he may relapse in the future but he asserted that he now understands the strategies that he needs to follow in that event in order to prevent his re-offending, and he emphatically asserted that he will not be going back to prison after his release.
In the Tribunal’s opinion, having regard, in particular, to the Violent Offending Treatment Program Completion Report (set out in paragraph 51 above) and to the applicant’s own evidence, the applicant has made some progress in his rehabilitation during his present period of incarceration. Furthermore, given the applicant’s apparent genuine motivation earnestly to try to remain drug-free and crime-free in the future, the Tribunal is of the opinion that, notwithstanding his history of relapsing and re-offending, there are realistic prospects that he will continue to make progress in his rehabilitation in the future.
Having regard to the matters referred to in paragraphs 44 – 46, 49 above, the Tribunal, notwithstanding the matters referred to in paragraphs 48, 50 – 53 above and its opinion that the applicant has recently made some progress in his rehabilitation and has realistic prospects of continuing to make such progress in the future, is not satisfied that he presents no risk, or merely a minimal or low risk, of re-offending in a serious manner involving violence or otherwise in a serious manner. In the Tribunal’s opinion, given the applicant’s total criminal history, there remains a real risk that he may re-offend in such a manner.
Conclusion regarding the protection of the Australian community
Having regards to the Government’s objectives referred to in para 5.1 of Direction [41], the applicant’s extensive criminal history including, in particular, some serious offences involving violence and other serious offences for which he received substantial custodial sentences, and the Tribunal’s assessment that there is presently a real risk that he may re-offend in a serious manner involving violence or otherwise in a serious manner, the Tribunal concludes that this “primary consideration” weighs in favour of cancellation of the visa. Having regard to all the circumstances of this case, the Tribunal attaches significant weight to this “primary consideration”.
Whether the person was a minor when they began living in Australia
Paragraph 10.2 of Direction [41] states:
“10.2   Whether the person was a minor when they began living in Australia
(1)   If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)   Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
By para 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.
The applicant was seven years old when he first arrived and began living in Australia on 14 February 1981. The applicant was, therefore, a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
It is common ground that the applicant has remained in Australia from 14 February 1981.
The phrase “formative years” is not defined in Direction [41] but the Tribunal, having regard to the common understanding of that phrase, is satisfied that the applicant spent most of his formative years in Australia. The applicant, furthermore, commenced to engage in criminal conduct during his formative years − more specifically, when he was 14 years old – but, in the Tribunal’s opinion, that does not detract from the weight that should be given to this “primary consideration”.
Pursuant to para 10.2 of Direction [41], this “primary consideration” clearly weighs in favour of the applicant.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
Paragraph 10.3(1) of Direction [41] states:
“10.3 The length of time that a person has been ordinarily resident
(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
The applicant has been ordinarily resident in Australia from 14 February 1981 and his first criminal conviction occurred on 24 February 1988. His next conviction occurred on 31 January 1990 and he thereafter engaged in criminal activity on almost an annual basis.
Given that the applicant was ordinarily resident in Australia for a period of approximately seven years before he commenced to engage in criminal activity, this “primary consideration”, pursuant to para 10.3 of Direction [41], weighs in the applicant’s favour. In the Tribunal’s opinion, however, it does not so weigh to a significant degree.
Relevant international obligations
Paragraph 10(1)(d) of Direction [41] refers to:
“ relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
The only relevant international obligation in this case is the obligation to have regard to “the best interests of the child”.
Direction [41] relevantly states:
“10.4 International obligations
(1)Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
…
10.4.1The best interests of the child
(1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
(2)The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.
…
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
It is common ground that the only relevant child for the purpose of this “primary consideration” is the applicant’s daughter, [C], who turned 15 years of age in December 2011.
The respondent does not contend − appropriately, in the Tribunal’s opinion – that either of the factors referred to in subparas (a) and (b) of para 10.4.1(4) of Direction [41] is applicable in this case.
Paragraph 10.4.1(5) of Direction [41] lists the factors which “are to be considered” in considering the best interests of the child. As regards those factors which are applicable in the circumstances of this case, the Tribunal comments as follows.
On the basis of the applicant’s evidence, and the evidence of [C], the Tribunal is satisfied that there is a very close, loving and supportive relationship between them, notwithstanding the substantial periods of separation from each other primarily by reason of the applicant’s periods of incarceration in 1999 – 2000, 2005 – 2007, and from March 2009 to date. The Tribunal also notes the following extracts from a letter from [C]’s mother, dated 10 October 2006, provided to the court for the purpose of sentencing:
“…
During the past 9 years we both experienced hard times where domestic violence got the greater of our relationship. Thus (sic) made things much difficult for Nicholas as he were suffering not only from his back injury, but from not being able to father his daughter. [C] our daughter was confused as a toddler she wanted, like all children her mum and dad together, as much as Nicholas and I tried to mend our relationship, it just didn’t work out. For a couple of years on and off, Nicholas would see and visit his daughter whom he loves immensely.
Over the last 3 years Nicholas seems to be regretful of his dealings of violent behaviour toward me, and would like to leave it in the past. Nicholas has had a lot to do with his daughter during the past 2 years and thereafter…
Before and during Nicholas’s recent jail sentence, he was repairing his relationship with his daughter [C]. Nicholas would escort his daughter to Tae Kwon Do which she trained twice a week. Nicholas became very involved with Tae Kwon do and was going to join himself. He also was making an effort to attend [C]’s Netball games, as well as, at times he would meet [C] after school to spend some time together and catch up. On occasions Nicholas would take not only [C] to the movies and on outings but also her very close friend.
Nicholas has been repairing his wrong doings and making up for the times he missed when [C] was younger. Nicholas whilst in jail would ring [C] frequently and send her letters almost every day…
…
… [C] and Nicholas both share a special father/daughter bond which although has taken years to get where they both are at present, would be a total shame and a huge impact on [C]’s life if this were to cease. All little girls do need their father, for what the two of them (Nicholas and [C]) have been through over the past 10 years would cause [C] to have a hard time understanding if Nicholas was taken out of her life once again.
…”(sic) (Exhibit R2, pp138 – 139, 140)
[C] (who, the Tribunal understands, is an Australian citizen) is presently 15 years and 4 months old and, if the applicant serves the full period of his present term of imprisonment, she will be 17 years and 3 months old when he is released. By reason of his incarceration, the applicant will be precluded from playing a substantial parental role until he is released. The Tribunal notes, however, that, on 13 September 2010, Consent Orders were made by the Family Court of Western Australia that (inter alia):
“ …
2)[C] visit the [applicant] in prison approximately eight times a year until his release, according to her wishes as follows:
a) Most public holidays;
b) Once during the three school term holidays;
c) Twice during the long [Summer] school holidays;
…
5)[C] to have frequent telephone contact with the [applicant];
6)[C] to spend time with the [applicant] when he is released from prison according to her wishes.
… (G8, pp 133-134)
The Tribunal accepts, furthermore, that, from the date of his release, the applicant is likely to play a substantial parental role in the remaining period of about 9 months until [C] turns 18 years of age. The Tribunal also notes that [C] presently lives with her mother, and infers that she is likely to continue to live with her mother at least until she turns 18, and that her mother presently fulfils, and is likely to continue to fulfil, a parental role in relation to [C]. The Tribunal accepts [C]’s evidence that her mother has always been fully co-operative in her having contact with the applicant.
The Tribunal accepts, having regard to [C]’s evidence and the contents of the abovementioned letter from her mother, that the applicant’s prior conduct, including, in particular, his prior violent conduct towards her mother when she was a young child, has not had a significant negative impact on [C], other than their physical separation which has resulted from that conduct.
[C] has clearly expressed her wish that the applicant be permitted to remain in Australia and the Tribunal, having regard to her evidence, is satisfied that she would suffer severe emotional hardship, which would be likely to adversely affect her emotional wellbeing and her education, if the applicant were removed from Australia. The Tribunal accepts, in this connection, that [C] would be unlikely to accompany the applicant in the event that he is so removed.
Conclusion regarding relevant international obligation
Having regard to the matters discussed in paragraphs 73-76 above, the Tribunal is satisfied that it would clearly be in the best interests of [C] if the applicant remained in Australia. Moreover, having regard to those matters, the Tribunal is of the opinion that it is appropriate to attach significant weight to this “primary consideration”.
The Tribunal concludes, therefore, that this “primary consideration” weighs against cancellation of the visa to a significant degree.
Other Considerations
Paragraph 11 of Direction [41] states:
“11. Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Paragraph 11(3) sets out an inclusive list of “other considerations”. The Tribunal comments on those “other considerations”, which are relevant in this case, as follows.
Family ties, the nature and extent of any relationships
According to the evidence before the Tribunal, all of the members of the applicant’s immediate family (other than his biological father) reside in Western Australia. These members comprise two daughters (aged 18 and 15 years), his mother and stepfather, two sisters and a brother. His biological father resides in England. If the applicant were removed from Australia those ties to the Australian community would obviously be disrupted to the extent that he would be geographically separated from those family members.
The applicant submitted that he was in a longstanding de facto relationship with Sandra Howlett, an Australian citizen. Although Ms Howlett was not called as a witness, a letter of support written by her (undated, but apparently written in late 2010 for the Department’s consideration) is included in the G Documents (G8, pp 76-79). In that letter Ms Howlett refers (inter alia) to having been “in a relationship” with the applicant for three years, their love and support for each other, their plan to live together when he is released from prison, and her intention to marry him “sometime after he is released”. The Tribunal notes that in recent letters written by the applicant for the purpose of this proceeding, which are in evidence (Exhibits A1 and A2), and in an earlier letter to the Department (G8, pp 60-65), the applicant consistently refers to Ms Howlett as his “girlfriend”. The Tribunal also notes that the applicant stated in his oral evidence that, upon his release from prison, he intends to live with his mother.
Having regard to the evidence before it, the Tribunal does not accept the applicant’s submission that he and Ms Howlett are presently in a de facto marital relationship and it is not satisfied that Ms Howlett should be regarded as a member of the applicant’s immediate family for present purposes. The Tribunal, however, does accept that there is a close, loving and mutually supportive relationship between them of about 5 years’ duration which is likely to continue after the applicant’s release from prison and which may develop into a marital relationship (whether de jure or de facto) in the future if the applicant is permitted to remain in Australia.

In the Tribunal’s opinion, however, the abovementioned disruption to the applicant’s family ties in Australia (referred to in paragraph 80 above) is a factor which, in conjunction with the factor of hardship to immediate family members in Australia (see paragraph 88 below), weighs against cancellation of the visa.
Health
As regards the applicant’s physical health, it is common ground that he has suffered from a back condition since 1997 (resulting from a work injury). He also claims that he is presently suffering from a serious neck condition and a neurological condition which makes it difficult for him to walk and necessitates the use of a cane. Although no medical evidence regarding those conditions has been tendered, the Tribunal notes that on 28 September 2011 the applicant was transferred from Bunbury Regional Prison to Casuarina Prison “to facilitate medical appointments at Sir Charles Gairdner Hospital” and was returned to Bunbury Regional Prison on 14 February 2012 (see Exhibit R2, p 47).
As regards the applicant’s mental health, his evidence was that he has “beaten” his prior depressive condition and that he is no longer taking antidepressants and has not relapsed into depression. No medical evidence regarding the applicant’s current mental health was tendered.
The Tribunal is satisfied that the applicant was not hindered by any physical or mental condition from advocating on his own behalf at the hearing. Nor is the Tribunal satisfied that the applicant’s health is a factor which militates against his removal from Australia. The Tribunal attaches no weight to this factor.
Links to the country to which the person would be removed
The applicant has not returned to, or visited, England since he departed in February 1981. According to the evidence before the Tribunal, the applicant’s only existing link to England is his biological father who continues to reside there but whom he has not seen since he departed and with whom he has not kept in contact. Although the Tribunal would expect that, if the applicant sought support from his father in England, his father would not turn him away and would provide at least moral support to him, the Tribunal accepts that he presently does not have significant links to England. This factor, accordingly, weighs in the applicant’s favour but the Tribunal does not attach substantial weight to it.
Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia
Having regard to the letters of support written by Georgia McNelly, Stephen McNelly, Paul Brown, Kerry Smith and Susan Stubbs (the applicant’s sisters) which are in evidence (see Exhibits A3, A4, and A5, and G8, pp 80, 81, 82, 83), the Tribunal accepts that each of those members of the applicant’s immediate family lawfully resident in Australia would be likely to experience emotional distress if the applicant were removed from Australia. As regards those family members, the Tribunal attaches by far the most weight to the hardship likely to be experienced by the applicant’s mother, Georgia McNelly, if he were removed from Australia. Although no medical evidence regarding the state of her health was tendered, she referred in her letter of 2 April 2012 (Exhibit A4) to her “very poor health” and her reliance on “the use of oxygen for day to day activities”, and she said in her oral evidence that she suffers from emphysema, lung disease and a form of epilepsy, and that she would probably die within the next two years. In giving her evidence, Mrs McNelly wore an oxygen mask and she appeared to the Tribunal to be in a very frail physical condition. The Tribunal, having observed Mrs McNelly give her evidence, is prepared to accept that the removal of the applicant from Australia would not only be likely to cause her to suffer great emotional hardship but would also be likely to adversely affect her already apparent parlous state of health.
The Tribunal accepts that the applicant would be likely to experience substantial emotional hardship if he were removed from Australia, given that he has lived in Australia exclusively for the past 31 years (since he was seven years old) and regards Australia as his home and all the members of his immediate family (other than his biological father with whom he has no contact) live in Australia. The Tribunal also accepts that the applicant’s physical separation from his 15-year-old daughter would cause him particular emotional distress, and that he would also suffer emotional distress by reason of his physical separation from Ms Howlett and the likely end of his close personal relationship with her. Furthermore, the Tribunal accepts that the applicant’s prospects of rehabilitation and his future wellbeing generally would be adversely affected by his removal from Australia and his separation from the supportive network of his immediate family members in Australia. On the other hand, the weight that the Tribunal would otherwise attach to this consideration is substantially reduced having regard to the fact that such hardship as the applicant may suffer by being removed from Australia will have been the product of his own failure to heed two previous formal warnings by the Department, in October 2005 and in June 2007 (see paragraphs 91 − 92 below) and his subsequent commission of serious offences.
In the Tribunal’s opinion, however, the factor of likely hardship weighs significantly against cancellation of the visa, primarily because of the abovementioned hardship likely to be experienced by the applicant’s mother in the event of his removal from Australia.
Whether the person has been formally advised in the past by an officer of the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act.
By letter dated 3 October 2005 an officer of the (former) Department of Immigration and Multicultural and Indigenous Affairs advised the applicant as follows:
“ NOTICE OF DECISION NOT TO CANCEL A VISA UNDER S501 OF THE MIGRATION ACT 1958
On 28 October 2004, the Department of Immigration and Multicultural and Indigenous Affairs notified you that your visa may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
You responded in writing on 2 November 2004 and your comments were carefully considered and taken into account.
A decision has been made not to cancel your visa. It will continue to provide you with permission to enter or remain in Australia.
Please note that cancellation of your visa may be reconsidered in the event of further or fresh information coming to notice. Yours visa may also be cancelled in the event of your incurring a liability for cancellation on new or different grounds.
...” (G18, p214)
By letter dated 4 June 2007 an officer of the Department advised the applicant as follows:
“NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958
On 9 May 2007 you were notified that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time. Your current visa will continue to provide you with permission to enter or remain in Australia. However the delegate decided that you are to given the following formal warning.
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
…
Please acknowledge receipt of this letter by signing and returning the attached page in the enclosed envelope.” (original emphasis) (G18, pp 211-212)
On 13 June 2007 the Department received a document, signed by the applicant and dated 7 June 2007, which states as follows:
“ I, Nicholas Ronald BROWN, born … May 1973, acknowledge that I have received the Notice of decision not to cancel visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.” (original emphasis) (G18, p213)
There is no dispute that the applicant received the abovementioned letters and, nevertheless, subsequently committed serious offences resulting ultimately in the cancellation of the visa on 23 January 2012. This factor clearly weighs against the applicant.
Overall Assessment of the Primary Considerations and the Other Relevant Considerations.
Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
The primary considerations
As regards the primary considerations, the first abovementioned primary consideration, namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence”, weighs significantly against the applicant and in favour of cancellation of the visa. In the Tribunal’s opinion, however, the applicant’s criminal record, while very extensive, does not include any offences which are so serious, and the risk of his re-offending in a seriously violent or other serious manner is not so high, as to make it appropriate necessarily to attach overwhelming or decisive weight to this primary consideration.
The other three primary considerations weigh, to differing degrees, in the applicant’s favour and against cancellation of the visa. While the Tribunal does not attach substantial weight to the third abovementioned primary consideration, namely, “the length of time that the [applicant] has been ordinarily resident in Australia prior to engaging in criminal activity…”, it does attach substantial weight to the second, and, especially, to the fourth, abovementioned primary considerations in this case. As regards the second primary consideration, the fact that the applicant was only seven years old when he arrived and began living in Australia and was exposed to criminality in Australia when he was about 14 years of age and still in his “formative years” is, in the Tribunal’s opinion, an important consideration which weighs against cancellation of the visa. Similarly, as regards the fourth primary consideration, the Tribunal has concluded that the best interests of the applicant’s 15-year-old daughter clearly favour the applicant’s remaining in Australia and, accordingly, this primary consideration weighs against cancellation of the visa to a significant degree.
Having considered the primary considerations in this case, the assessment of the Tribunal is that the abovementioned second, third and fourth primary considerations collectively outweigh the abovementioned first primary consideration, namely, “the protection of the Australian community…”.
The other relevant considerations
As regards the other relevant considerations discussed in paragraphs 80−94 above, although the majority of those considerations weigh in favour of the applicant, one of those considerations weighs strongly against him, namely, his commission of further serious offences despite having been formally advised or warned by the Department on two previous occasions that such conduct on his part may lead to a reconsideration of whether the visa should be cancelled.
Although the Tribunal attaches substantial weight to the lastmentioned consideration, it does not regard that consideration as itself outweighing those other relevant considerations which collectively weigh in favour of the applicant.
Conclusion
In the Tribunal’s opinion, the primary considerations and the other relevant considerations in this case are finely balanced. Having considered the totality of the primary considerations and the other relevant considerations in this case, the Tribunal has, however, come to the conclusion that, on balance, they weigh against cancellation of the visa, and that, accordingly, the preferable decision in this case is that the visa should not be cancelled under s 501 (2) of the Act.
In arriving at that conclusion, the Tribunal has given due consideration to the Government’s objective stated in para 5.1(2) of the Direction [41], namely, “to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”. The Tribunal, however, also notes para 5.2.(4) of Direction [41] which states:
“ In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
In the present case, although the Tribunal considers that there is a real risk that the applicant may re-offend in a serious manner involving violence, or otherwise in a serious manner, the Tribunal is of the opinion that, having regard to all the circumstances of this case, and to its understanding of the standards and values of the Australian community, such risk would not be unacceptable to the Australian community.
Decision
For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the visa not be cancelled under s 501(2) of the Act.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

.........sgd E Jordan..................
Administrative Assistant
Dated 24 April 2012

Date of hearing 11 April 2012

Representative of the Applicant Self-represented

Representative of the Respondent Mr D McLaren

Solicitors for the Respondent Sparke Helmore

[2012] AATA 235

24 April 2012

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Character Test

Substantial Criminal Record

Protection of Australian Community

Judicial Review

Legitimate Expectation

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0440
Re	NICHOLAS BROWN
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	24 April 2012
Place	Perth

Date of hearing	11 April 2012
Representative of the Applicant	Self-represented
Representative of the Respondent	Mr D McLaren
Solicitors for the Respondent	Sparke Helmore