Nolan and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1035
•19 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1035
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/278
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN BARRY NOLAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date19 October 2005
PlacePerth
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – absorbed person visa – applicant arrived in Australia from United Kingdom in 1967 when aged 8 years – applicant subsequently became holder of absorbed person visa – applicant convicted of offences in Australia, including armed robbery and murder – applicant sentenced to life imprisonment – applicant’s visa cancelled – applicant does not pass character test – discretion to cancel applicant’s visa – Ministerial Direction – primary considerations – protection of Australian community favours cancellation of visa – expectations of Australian Community favour cancellation of visa – best interests of child favour non-cancellation of visa – other relevant considerations favour non-cancellation of visa – balancing of all considerations – primary considerations and other relevant considerations on balance favour cancellation of visa – decision under review affirmed
Migration Act 1958 (Cth) s 501
Direction – Visa Refusal and Cancellation under section 501 – No 21
Re Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 444
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
REASONS FOR DECISION
19 October 2005 Deputy President S D Hotop INTRODUCTION
1. The applicant, Kevin Barry Nolan, who was born in London, England in July 1959, migrated to Australia from the United Kingdom (“UK”) with his parents and siblings in October 1967 when he was 8 years old, and he was issued with a permanent entry permit on arrival. He has lived in Australia ever since. In September 1994 he became the holder of an absorbed person visa and a transitional (permanent) visa. He is not an Australian citizen and he remains a UK citizen.
2. On 19 July 2005 a delegate of the respondent Minister decided to cancel the applicant’s absorbed person visa under section 501(2) of the Migration Act 1958 (Cth) (“the Act”) on the ground that he does not pass the “character test” (as defined in section 501(6)). By reason of section 501F (3) of the Act, the delegate is thereby taken to have also decided to cancel the applicant’s transitional (permanent) visa. The applicant has applied to this Tribunal for a review of the delegate’s decision.
The Issue
3. The general issue for the Tribunal’s determination is whether, having regard to all relevant circumstances of the applicant’s case, his absorbed person visa should, or should not, be cancelled. For the reasons which follow, the Tribunal has determined that the applicant’s visa should be cancelled.
The Legislation
4. 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 section 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 paragraph (a) of section 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”. Those circumstances include:
“(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more;”.
5. In reviewing the delegate’s decision in this matter pursuant to section 500 of the Act, the Tribunal is required, by section 499(2A) of the Act, to comply with a direction given by the respondent under section 499(1) of the Act. The relevant direction as presently in force, namely, “Direction - Visa Refusal and Cancellation under section 501 - No 21” (“the Direction”), was given by the respondent on 23 August 2001 with effect from that date. The Direction comprises two parts. Part 1 deals with the application of the “character test” set out in section 501(6) of the Act. Part 2 deals with the exercise of the discretionary power to refuse, or to cancel, a visa under, respectively, subsection (1) or subsection (2) of section 501 of the Act, in the event that the relevant person does not pass the “character test”. The Direction will be referred to more fully later in these reasons.
The Applicant’s Criminal History
6. The applicant’s recorded criminal history in Australia is as follows:
Court
Date
Charges heard
Count
Result
Yasmar Children’s Court
09.06.1975
Assault
1
Probation 12 mths
Heidelberg Magistrates Court
20.07.1977
Indian hemp possession of
1
$100 fine
Heidelberg Magistrates Court
20.07.1977
Indian hemp
used/smoked
1
$50 fine
Melbourne Magistrates Court
21.02.1978
Possess prohibited import
1
Adj for 12 mths; good behaviour bond $100
St Kilda Magistrates Court
03.08.1978
Indecent language
1
Adj good behaviour bond $100 till 1.11.79
South Melbourne Magistrates Court
18.09.1978
Possess pistol without licence
1
$200 fine
Heidelberg Magistrates Court
04.09.1979
Possess drug of addiction
1
$200 fine
Heidelberg Magistrates Court
04.09.1979
Self administer drug of addiction
1
$100 fine
Brunswick Magistrates Court
29.02.1980
Obtain property by deception
1
Probation 2 years
Brunswick Magistrates Court
05.03.1980
Obtain financial advantage by deception
1
Probation 2 years
Brunswick Magistrates Court
05.03.1980
Obtain property by deception
14
Probation 2 years on all charges
Adelaide Magistrates Court
06.01.1981
Imposition
2
1. $150 fine
2. $100 fineMelbourne County Court
01.05.1981
Burglary
1
9 mths conc
minimum 9 mthsMelbourne County Court
01.05.1981
Robbery
1
2 years imprisonment
Ararat Magistrates Court
09.02.1982
Assault unlawful (common)
1
$100 fine
Ararat Magistrates Court
09.02.1982
Assault with a weapon
1
$200 fine
Ararat Magistrates Court
09.02.1982
Resist arrest
1
$100 fine
Parole Board
01.02.1983
Breach of parole of 30.10.81
1
To serve unexpired portion of 1 year 2 months 28 days
Perth Court of Petty Sessions
26.10.84
Hinder police
1
Good behaviour bond $50, 6 mths
Perth Court of Petty Sessions
18.12.1984
Possess smoking implement
1
$60 fine
Perth Court of Petty Sessions
17.01.1985
False pretences
1
$80 fine
Perth Court of Petty Sessions
17.01.1985
No motor driver’s licence
1
$15 fine
Perth Court of Petty Sessions
17.01.1985
Stealing
1
$40 fine
Supreme Court of WA, Perth
21.02.1986
Assault occasioning bodily harm
1
3 mths imprison-ment conc
Supreme Court of WA, Perth
21.02.1986
Robbery whilst armed
3
4 years imprison-ment cum each charge
Supreme Court of WA, Perth
21.02.1986
Robbery whilst armed in company
6
Detained in prison during Governor’s pleasure each charge
Supreme Court of WA, Perth
21.02.1986
Unauthorised use of motor vehicle
2
3 mths imprison-ment conc each charge
Perth Court of Petty Sessions
24.03.1986
Cannabis possession qty intent to sell / supply
1
$1000 fine
Perth Court of Petty Sessions
24.03.1986
Cannabis possession
1
$200 fine
District Court of WA, Perth
09.12.1988
Deprivation of liberty
5
1:2 yrs imp cum
2-5: 2 yrs imp conc each charge
Perth Court of Petty Sessions
12.10.1989
Assault prison officer
2
1 mth imprisonment cum each charge
Albany Court of Petty Sessions
14.03.1991
Assault public officer
1
3 months imprisonment cum
District Court of WA, Perth
19.03.1993
Assault public officer
violent offence
1
6 months imprisonment
Supreme Court of WA, Perth
25.05.1995
Murder
1
Life imprisonment
Analysis and Findings
Application of the “character test”
7. The applicant rightly concedes that, by reason of the abovementioned sentence of life imprisonment that was imposed upon him on 25 May 1995 following his conviction of the crime of murder, he has a “substantial criminal record” as defined in section 501(7) of the Act and that, in accordance with section 501(6)(a) of the Act, he does not pass the “character test”, and the Tribunal so finds. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to section 501(2) of the Act is enlivened in this case.
Should the discretionary power to cancel the applicant’s absorbed person visa be exercised in this case?
8. Part 2 of the Direction specifies various considerations to which all relevant decision-makers, including this Tribunal, must have regard when exercising the discretion to decide whether or not a visa should be cancelled. Part 2 of the Direction also addresses the matter of the appropriate weight that is to be given to the specified considerations. Paragraph 2.2 of the Direction states:
“The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”
The Primary Considerations
9. Paragraph 2.3 of the Direction sets out the following three primary considerations:
“(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
The first primary consideration – protection of the Australian community
10. Paragraph 2.5 of the Direction states:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
The Tribunal will now consider each of those relevant factors in the context of the present case.
The seriousness and nature of the conduct
11. Paragraph 2.6 of the Direction lists examples of offences which are considered by the Government to be “very serious”. These include (relevantly):
“(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f)murder, manslaughter, assault or any other form of violence against persons;”.
12. The applicant’s conduct, which resulted in his conviction of murder and his sentence of life imprisonment on 25 May 1995, was described by the Crown Prosecutor when opening the Crown’s case on 15 May 1995 as follows:
“The killing took place in Casuarina Prison. The accused was a prisoner there. The man he killed, Kenneth Peter Osmond, was also a prisoner serving a term of imprisonment of 9 years and 11 months for a number of offences of a sexual nature committed against children, although not against the accused’s children. Osmond had commenced his sentence on 24 May 1993 but it seems the accused did not become aware of his presence within the prison until Monday, 18 July 1994, …
The accused was residing at that time in a building known as unit 3. He had been moved to that unit recently, and the senior officer of the section in which the accused had his cell had an office within that unit. In that office there was a muster board showing the names and photographs of the prisoners within the unit. While in that office on 18 July last year the accused noticed Osmond’s name and photograph, and although he had not known what Osmond looked like, the name had been inscribed in his memory some years previously when he was at Fremantle Prison.
At Fremantle Prison the accused had received visits from his son, Marcus. On one such visit Marcus asked the accused if he would kill a man for him. They had some later discussion but it seems that it was not until later visits that Marcus told the accused that the man had done rude things to him – those are the words he used – and eventually revealed the man’s name was Kenneth Osmond.
The accused had indicated his feelings towards the abuser of his child when at one stage he told the superintendent of Fremantle Prison, while he was there, that his son had been sexually molested, and said, ‘If I ever catch the bastard who did it I’ll kill him.’ The discovery on 18 July 1994 by the accused that Osmond was not only in the same prison as himself but in the same unit set the accused, on the Crown’s case, on a tragic course which was to result in Osmond’s death.
That day, 18 July 1994, the accused spoke with his son Marcus, who telephoned for his birthday. The accused made Marcus aware that Osmond was in the prison and asked him if he still felt the same about Osmond. Marcus said he did but he did not want anyone killed. The accused said he would not do anything before meeting with Marcus the following Saturday. However, after he had finished speaking with Marcus, the accused continued to dwell on the situation.
…
The next day, 19 July 1994, the accused found out which cell Osmond was occupying. He then watched him as he went about his usual business, paying much attention to Osmond’s physical features, his manner and where he went to. In this way the accused discovered that Osmond attended the prison school and that he left the school at the time that prisoners were released from the industries, around 3 pm. …
It seems, from what the accused subsequently told police, that the following day, 20 July 1994, he went about his usual routine without specifically seeking out Osmond. However, he continued to think about Osmond and what he had done and before that day was over the accused had acquired two weapons which he hid in his cell … One was an ordinary table knife, … which had been sharpened to a point, sharpened on both edges, …
The other was a length of heavy metal which had been made into a sharp weapon, … like a hunting knife, and again a very sharp edge, …
The following day, Thursday, 21 July 1994, the accused sought permission from the senior officer in his unit to practise Tai Chi with another prisoner on the grassed area outside unit 3 in the early afternoon. …
Around 2.30 the accused ceased doing that; went to his cell and returned outside with the two weapons … He put those weapons in his pockets, concealing them in that way but also concealing them with a jumper which he put over the pockets. …
He then sat under the pergola outside unit 3 and waited for Osmond to emerge from the school. …
…when the prisoners were released from the school just after 3 pm the accused spotted Osmond walking towards unit 3. He was with another prisoner known to the accused as ‘the gardener’. The accused walked up to them. He turned to the gardener and said, ‘What, there’s no gardening today?’ and then without warning he turned to Osmond, took out the knives and stabbed him twice in the abdomen causing two deep wounds.
Osmond fell to the ground face down. The accused got on his back and pulled Osmond’s head back … He then repeatedly slashed with the knives at Osmond’s neck cutting his throat and severing both jugular veins causing an enormous loss of blood which resulted in Osmond’s death.
Prison officers were alerted to what was happening and ran to the scene. The first two to arrive, one male and one female officer, tried to get the accused to put down the weapons. He refused to do so and when they tried to approach him he waved the knives in their direction, telling them to keep away. They were unarmed. The accused then continued to cut away at Osmond’s neck. At one stage he was seen by at least one officer to reach into the deep wounds that he had caused. He then stabbed Osmond twice in the lower back.
During the attack the accused was shouting a number of things including words to the effect that Osmond had raped his son. After stabbing Osmond in the back the accused stood over his body, raised his arms in the air and shouted that his son had been avenged and words to the effect, and I quote, ‘This is what happens when you fuck with my children.’ There were a large number of prisoners in the vicinity at the time.
…”
13. Paragraph 2.7 of the Direction states:
“It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. …”
In sentencing the applicant to life imprisonment following his conviction of murder on 25 May 1995, the trial judge, Parker J, said:
“… the circumstances of the offence were most gruesome and your conduct at the time most alarming and … it is the sort of conduct which anybody would find abhorrent and a great concern. In terms of the actual offence of killing itself the circumstances are of the worst type.
The confusion of your mental state at the time, born out of emotion and your childhood, has clearly been of material influence with the jury as to the exact mental processes that you were having at the time so that they have reached the position that they were not persuaded that you had actually formed and were pursuing an intent to kill but instead you were meaning to do serious harm to the deceased.
The record that is before me of your past is one that would normally allow little or no room for any consideration in your favour in respect of a minimum term because, as you appreciate, you have now what is a serious criminal record and they involve offences where there is threatening of harm and potential violence to people.
I am concerned, though, that you have served now what by any standards is a long term of imprisonment and for a man of your age to impose the maximum minimum term, having regard to its cumulative effect, would appear to me to be an exercise of discretion that would be too harsh because it would leave no prospect to you of some reasonable hope in the future.
It is very clear that there needs to be a great deal of care and attention to your mental and personality condition and it seems to me that in the course of that there has to be some prospect for you of being able to re-establish yourself in the community. I do not want to be understood from those comments that I am passing over without due weight the enormity of this offence.
It is a most grave offence and the community would very rightly expect that I give very full weight to those circumstances, but it seems to me that in the remarkable situation in which you find yourself, this having occurred near the end of a very long prison sentence and having regard to your present age, that I should alter what would otherwise be my position because strictly speaking, having regard to this offence and your record, the maximum minimum term would, in my view, have been appropriate.
But having regard to the matters that I have commented upon I would order that you be sentenced to life imprisonment, which is the statutory requirement, and I would fix a minimum term before which you might be eligible for parole at 10 years. …”
14. In sentencing the applicant, on 21 February 1986, to an effective term of 12 years’ imprisonment following his conviction on 9 counts of armed robbery and related offences, Olney J said:
“Kevin Barry Nolan, you have been convicted on your own plea of guilty on two counts of unlawfully assuming control of a motor vehicle and nine counts of armed robbery, six of which were committed in company with another and, in addition, on a further count of assault occasioning bodily harm.
The two motor vehicles unlawfully used were taken for the purpose of providing transport to and away from the scene of robberies and in each case the vehicle was later abandoned and recovered. With one exception only, the robberies were committed against banks, in daylight, with the implied threat of violence being associated with the displaying of a toy or replica firearm. The one exception was a robbery committed against a small suburban store.
The first of the armed robberies was committed on 3rd January 1985 and the second just over a month later, on 7th February.
Thereafter you committed two further robberies at intervals of eight days and seven days respectively, until you were apprehended on 22nd February 1985. You remained in custody for approximately 16 weeks until obtaining bail on 13th June 1985, but three weeks later, on 6th July, you committed the offence against the local storekeeper to which I have already referred.
Subsequently, at intervals of 2, 7, 4 and 7 days respectively, you committed robberies against banks and were ultimately apprehended on 29th July 1985 when you were taken into custody where you have since remained.
In the 7-week period from 3rd January 1985, when you committed your first robbery, until you were apprehended on 22nd February, you committed four armed robberies which yielded a gross of approximately $15,000. In the 5½ weeks when you were at liberty after being released on bail, you committed a further five armed robberies, during which in excess of $16,000 was stolen. All of this reveals such a contemptuous disregard for the law and the rights of other members of the community, that it is difficult to give any weight to mitigating factors personal to yourself, that in other circumstances might justify a court in adopting a more lenient approach to the task of sentencing.
I have not yet referred to the final conviction for assault occasioning bodily harm, which occurred probably as a result of you thinking you were about to be apprehended by police and whilst your reactions on that occasion may have reflected your mistaken understanding of the situation the fact is that you did display a significant degree of violence towards an entirely innocent victim.
…”
15. As regards the abovementioned armed robberies which were committed in 1985, the applicant claimed, by way of mitigation, that the State children’s welfare system was then proposing to take his 2 children (Travis, then aged 5 years, and Marcus, then aged 4 years) into care because of neglect, and he committed those offences in order to obtain money so that he could take his children overseas and start a new life with them. He added that he had reacted in that way because in 1976 he had lost his first child (Jonathan, then aged 16 months) to the children’s welfare system in Victoria. As regards the crime of murder of which he was convicted in May 1995, the applicant claimed, by way of mitigation, that, towards the end of his period of imprisonment for the abovementioned armed robberies, he was placed in the same prison unit as the victim who, he had been made aware, had sexually abused his son, Marcus, some four years earlier. He also referred to his “own sexual abuse as a child”, and his “children’s sexual abuse whilst being wards of the State”, as factors which affected his state of mind when he killed the victim.
16. In the Tribunal’s opinion, none of the abovementioned factors relied on by the applicant detracts significantly from the gravity of the armed robberies and the murder which the applicant perpetrated in, respectively, 1985 and 1994. In particular, the murder committed by the applicant in July 1994, the circumstances of which were described in the above-quoted remarks of the Crown Prosecutor and the sentencing judge (see paragraphs 12 and 13 above), was, in the Tribunal’s assessment, an abhorrent and heinous crime. Accordingly, the seriousness and nature of the applicant’s conduct is a factor which weighs very heavily against him.
The likelihood that the conduct may be repeated (including any risk of recidivism)
17. Paragraph 2.10 of the Direction relevantly states:
“It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)…
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. …; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”
18. The applicant’s recorded criminal history in Australia (set out in paragraph 6 above) comprises numerous offences committed on a relatively regular basis over the period from 1975 to 1994 when, while serving a prison sentence for the armed robbery offences he committed in 1985, he committed the crime of murder for which he is presently incarcerated. He has also been found guilty of numerous prison charges in the period from the commencement of his present period of incarceration in 1986 (when he was convicted of the armed robbery offences) until 1999. That criminal history, in the Tribunal’s opinion, would of itself indicate that there is a high risk that the applicant will reoffend.
19. The applicant, however, provided much evidence, both oral and written, to the Tribunal in support of his claim that he is a changed person, has been rehabilitated, and no longer represents a risk of reoffending or any other threat to the community in the future.
20. In a written statement dated 6 June 2005, and in oral evidence, the applicant described the change that he had undergone during his incarceration over the last 20 years, and especially during the last 9 years. He said that when he commenced that period of incarceration in 1986 he was very bitter over the loss of his children to the State children’s welfare system and was very disruptive and non-compliant. Subsequently, however, he gradually came to accept responsibility for his wrongdoing and to mature and grow as a person. He taught himself to read and to write, and he instituted a writers’ workshop in prison which created a local radio programme and produced a book of poetry which was published. He also wrote and produced children’s plays which were performed in prison at Christmas and Easter. He added that over the years he has re-established his faith in Christianity, not merely on the basis of attendance at the prison chapel on Sundays, but rather on the basis of a day-to-day “living relationship with Jesus as [his] Lord and Saviour”, and that he owes the changes in his “life, attitude, outlook and behaviour to maturity, growth and the grace of Jesus”. His statement continues:
“Since coming back to albany Regional Prison 1997, I have been involved in Peer Support this is helping inmates deal with surviving their prison term, no-matter what their crime may have been. I have been able to deal with the hatred I was lived with for others who had offended against Children (I still hate the crime but not the person). I have even met 3 of the men that have hurt or abused my Children within the past 5-7 years and due to maturity, the change of life that Jesus has made in my life, I have been able to talk with them, forgive them and I have helped them with a genuine care. I also have been able to help many other inmates who are placed within the protection unit here within Albany by befriending them and helping them in anyway that is permissible and possible. I do not only offer this support to those confined to the protection unit but to all who are within the prison. I am called upon by prison staff, Medical Staff and by the prison Psychologist to assist with vulnerable and or those inmates that are in need of help. This I do because not only of the need I see but mostly due to the change that has happened in my life. This is not something that only happens at Albany Prison I have in the past 9 years spent time in other Prisons on temporary transfer and I have always been heavily involved with Peer Support and helping others. …
Due to my life changing experience I have not only been adopted by the Christian community here in Albany but within prison fellowship throughout Western Australia. My involvement and relationship with my Christian family here in Albany has opened up the opportunity for me to continue to help others upon my release. For some time now some of the Ministers/Pastors/Prison Chaplains have been looking into ways to obtain a most need home that could house those in need, a project to help ex inmates, young offenders and those people who are being missed by the recourses available in Regional South West. A half way house here within Albany, for the past few months the Churches have raising funds seeking Government grants to purchase such a property for this project and I have been asked to work with the people who will find themselves staying there, this is upon my release. There are also 4 units that are used for the same purpose run by the Uniting Church in Perth, which I have been asked to oversee and assist those who occupy them. This is a great privilege and honour to be asked to be involved in such a project and also it is greater still that the change in my life has given me such an opportunity to give back so much, and to live a life that reflects the change that the Lord has made in my life. (sic)
…”
21. Roger Summers, Clinical Psychologist at Albany Regional Prison since 1997, gave oral evidence. He said that he had known the applicant since 1997 and had counselled him generally in that period. He confirmed that he had prepared 2 psychological reports on the applicant, the first, dated 12 January 2004, at the request of the Department of Justice for the purpose of determining the applicant’s suitability for a pre-release program, the second, dated 24 May 2005, at the request of the Parole Board to outline recent developments regarding the applicant’s ongoing individual counselling. Both reports are in evidence. In the first report Mr Summers recommended that the applicant be included in a Violent Offending Treatment Program (“VOTP”) and that a further assessment of his progress be made upon successful completion of that program. In the second report Mr Summers confirmed that the applicant had completed a VOTP and had been attending individual counselling sessions with him since February 2005, and he went on to recommend that the applicant continue with “1:1 counselling but at a different prison and with a counsellor who is less known to him.”
22. In his oral evidence Mr Summers confirmed that the report of the applicant’s VOTP was “generally favourable” and stated that the applicant had made “therapeutic gains”, and he opined that the applicant was suitable for a pre-release program. He said that over the last 7-8 years he had observed changes in the applicant in that he had now matured and was functioning psychologically better than before – he now comes forward and asks for help and, although he still gets angry, he does not express his anger in a negative or detrimental way. He attributed the applicant’s changed attitude substantially to his religious beliefs which appeared to him to be genuinely and strongly held and observed in all aspects of his daily living. He confirmed the applicant’s peer support activities in Albany Regional Prison, describing him as effectively the peer support leader in the prison. He also confirmed that the applicant is no longer confrontational with prison officers and has gained their respect, and he described the applicant’s prison conduct as “about as good as you can get”.
23. As regards the risk of the applicant’s reoffending, Mr Summers acknowledged that, looked at “actuarially”, the risk is high, but he added that, having regard to recent personal factors including the applicant’s changed attitude and his strong religious beliefs and Christian faith, that risk is “somewhat reduced”. He further added, however, that there will always be such a risk.
24. Dr Lois Achimovich, Consultant Psychiatrist, gave oral evidence. She confirmed that she had provided a letter dated 7 June 2005 in support of the applicant’s being permitted to remain in Australia. In that letter Dr Achimovich states that she first met the applicant’s children, Travis and Marcus, in 1993 in her capacity as the inaugural chairperson of the Port Community High School and she also met the applicant at that time when she escorted his sons to visit him in prison. She also states that she has visited the applicant in prison at least 6-monthly over the last 5 years and “more frequently prior to that”, and that she has observed that the applicant is “a much more mature, settled and happy person than the man [she] knew ten years ago”. In her oral evidence, she said that she was unable to give a professional opinion regarding the risk of the applicant’s reoffending, but she said that she would trust the applicant with her own children’s lives.
25. Bob Reeby, Assistant Superintendent at Albany Regional Prison, gave oral evidence. He said that he commenced work as a prison officer at Albany Regional Prison in 1988 and first met the applicant at about that time. He said that there had been a “considerable change” in the applicant’s attitude and behaviour and that he had “mellowed significantly” since his early prison years, such that he has been a “model prisoner” since 2000. He referred to the applicant’s involvement in the peer support group in the prison and commented that the applicant provides support to all categories of prisoners, including paedophiles. He mentioned that the applicant also conducts Bible classes for prisoners and he attributed his mellowing partly to his Christian faith.
26. Major Bruce Foynes, Prison Pastoral Care Officer, The Salvation Army, gave oral evidence. He confirmed that he had written a letter dated 30 June 2005 in support of the applicant’s being permitted to remain in Australia. In that letter he states that he has regularly visited prisons throughout Western Australia for the past 15 years and that the applicant was one of his earliest prison “contacts” and he has met the applicant at Casuarina, Canning Vale (Hakea) and Albany prisons over the last 15 years. He said that over that period the applicant had mellowed and matured, was no longer a “know all”, and had developed a strong social conscience. He attributed those changes to the applicant’s Christian faith and his “unashamed professing of Jesus Christ as his Lord”. As regards the risk of the applicant’s reoffending, Major Foynes acknowledged that the applicant had been in a “different world for a long time” but added that he had been preparing himself for re-entry into the community and had developed an attitude of care and genuine desire to put something back into the community, especially by way of providing counselling to members of the community.
27. Father Thomas Paschal Kearney of the Holy Family Parish, Albany gave oral evidence. He confirmed that he had written a letter dated 21 September 2005 in support of the applicant’s being permitted to remain in Australia. In that letter he states that is a Chaplain at Albany Regional Prison and that he has known the applicant for the 6 years in which he has ministered at the prison. He goes on to state that his knowledge of the applicant would convince him that the applicant would not be a threat to society upon his release. In his oral evidence he added, as regards the risk of the applicant’s reoffending, that the applicant had undergone a “remarkable change” and was now a “decent human being” who is always willing to help others, but he acknowledged that the applicant would need time to readjust to living in the community.
28. David Waldeck, a resident of Albany who is involved in the Prison Fellowship Program at Albany Regional Prison, gave oral evidence. He confirmed that he had written a letter dated 8 June 2005 in support of the applicant’s being permitted to remain in Australia. In that letter he states that he has come to know the applicant well over many years since he started attending prison fellowship and over that time he had observed a great change in the applicant’s personality and behaviour as he matured and faced his own behavioural problems, such that he is now a consistent help and support to his fellow inmates. He expressed the view that the applicant, because of his leadership qualities, sincerity and keenness to help others, would be a benefit to the community, especially in a counselling role. He did not believe that the applicant was at risk of reoffending.
29. Jack Bruning, a resident of Albany who is also involved in the Prison Fellowship Program at Albany Regional Prison, gave oral evidence. He evidence was to the same general effect as that of David Waldeck (above).
30. Similarly supportive letters written by Reverend Harold Taylor (Co-ordinating Chaplain at Albany Regional Prison), Reverend Alan Ward (a Chaplain at Albany Regional Prison), and Lionel Roberts, Agnes Roberts and Joan Hart (residents of Albany who are also involved in the Prison Fellowship Program at Albany Regional Prison), are also in evidence before the Tribunal.
31. A Department of Justice Immigration Report, dated 26 April 2005, referred to the applicant’s polite and courteous behaviour in prison and his excellent performance in his peer support role, and noted that he is to be assessed for inclusion in a Pre-Release Program prior to being released on parole. A Department of Justice Pre-release Program Suitability Report, dated 22 December 2004, noted that the applicant had “demonstrated that he is a worthy candidate for inclusion in a Pre-Release Program” but added that “it is not known if his treatment needs have been met” and recommended that his inclusion in a Pre-Release Program be deferred until the outcome of his VOTP participation and of his latest psychological report is known. The Tribunal notes that these matters were referred to in the evidence of Roger Summers, Clinical Psychologist, Albany Regional Prison (see paragraphs 21-22 above), but, as far as the Tribunal is aware, a final decision regarding the applicant’s inclusion in a Pre-Release Program has not yet been made.
32. Having regard to the material referred to in paragraphs 20-31 above, the Tribunal is prepared to accept that the applicant has, during the last 5 years, made substantial progress towards his rehabilitation while in prison and that he has also made a substantial positive contribution to the prison community and, furthermore, that if he were permitted to remain in Australia upon his release from prison he may well make a positive contribution to the community at large. As regards the risk of his seriously reoffending, however, the Tribunal is not satisfied, on the whole of the material before it, that the risk of such reoffending is merely minimal. Such a risk, in the Tribunal’s opinion, continues to exist but the Tribunal is prepared to accept the opinion of Roger Summers, Clinical Psychologist, that, by reason of the applicant’s changed attitude and his presently-held strong religious beliefs and Christian faith, that risk is somewhat lower than is otherwise indicated by his criminal history. Unfortunately, there is no comprehensive expert recidivism risk assessment report in evidence before the Tribunal, and, absent such expert evidence, the Tribunal is unable to be precise about the degree of risk of the applicant’s seriously reoffending. The Tribunal is, however, prepared to accept, on the whole of the evidence before it, that such risk is relatively low.
General deterrence – the likelihood that cancellation of the applicant’s visa would prevent (or inhibit the commission of) like offences by other persons
33. Although paragraph 2.11 of the Direction states that “general deterrence is an important factor in determining whether to … cancel a visa”, and then mentions certain ways in which the “general deterrence factor may be relevant”, it seems to the Tribunal that in the circumstances of the present case, where a most serious crime of murder was committed resulting in a sentence of life imprisonment (with a minimum of 10 years to be served before eligibility for parole), the cancellation of the applicant’s visa would be unlikely to have a significant additional deterrent effect as regards the commission of like offences by other non-citizens. Accordingly, the Tribunal attaches very little weight to this factor in the present case.
Overall assessment of the first primary consideration – the protection of the Australian community
34. Having regard to the circumstances of the applicant’s case, including in particular the factors referred to in paragraph 2.5 of the Direction and discussed in paragraphs 11-33 above, it is the opinion of the Tribunal that, notwithstanding the relatively low risk of the applicant’s seriously reoffending and (as the Tribunal is prepared to accept) the low risk of his again committing the crime of murder, the nature of the applicant’s conduct in committing the crime of murder in July 1994 (as described by the Crown Prosecutor and the trial judge, Parker J, in the passages quoted in paragraphs 12 and 13 above) is so heinous and abhorrent that any risk – even a low risk, as may exist in this case – that such conduct may be repeated is a risk that is completely unacceptable and from which the Australian community must be protected. Accordingly, the overall assessment of the Tribunal is that the first primary consideration – the protection of the Australian community – militates in favour of cancellation of the applicant’s visa. The Tribunal, furthermore, regards this primary consideration as deserving of great weight.
The second primary consideration – the expectations of the Australian community
35. Paragraph 2.12 of the Direction relevantly states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust, or where a non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to … cancel the visa held by such a person. Visa … cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person … should be removed from Australia. …”
It is axiomatic that the Australian community expects non-citizens to obey Australian laws while in Australia. A far more problematic matter is the expectation of the Australian community as regards the cancellation, or non-cancellation, of a non-citizen’s visa. In making an assessment of the likely expectation of the Australian community regarding the cancellation, or non-cancellation, of the applicant’s visa, it is appropriate, in the Tribunal’s opinion, to approach that task from the standpoint of the hypothetical, reasonable and fair-minded member of the community with imputed knowledge of all relevant circumstances of the applicant’s case. Such knowledge will include not only knowledge of the circumstances of the applicant’s most serious crime of murder, his armed robbery offences and his entire criminal history, but also knowledge of his other relevant circumstances, including his personal circumstances. Accordingly, the Tribunal will postpone further discussion of this matter until after it has considered all of the applicant’s relevant circumstances.
The third primary consideration – the best interests of the child
36. According to paragraph 2.13 of the Direction, this consideration only applies where the child or children in question would be under 18 years of age at the time when the relevant decision is intended to come into effect. The applicant’s three children are already of adult age – Jonathan is presently 30 years of age, Travis is presently 26 years of age, and Marcus is presently 25 years of age – and, accordingly, are not the subject of this primary consideration.
37. Although this primary consideration appears to be chiefly concerned with minor children of the non-citizen – see paragraph 2.15 of the Direction which states that generally “the child’s best interest will be served if the child remains with its parents” – it is clear from subparagraph 2.3(c) of the Direction that it is not confined to such children and that it also includes minor children who are in a “close relationship”, other than a parent/child relationship, with the non-citizen. In the present case the applicant has a granddaughter – Hope, who is presently 5 years of age – with whom he claims to have a very close relationship and who, he submits, falls within the scope of this primary consideration.
38. Hope is the daughter of the applicant’s son, Travis, who is presently incarcerated in Victoria, and Jacki Sullivan who resides in a Perth suburb. Hope lives with, and is cared for by, Ms Sullivan. Ms Sullivan gave evidence that Hope is “very close” to the applicant, although their physical contact has been limited to prison visits and she has never had the opportunity to play outside with him, or spend the night at home with him, or even visit him at Christmas. She said, however, that during those prison visits Hope and the applicant relate to each other as if they are “the only two people in the world”, and Hope is so happy when she is with the applicant and “heartbroken” when it is time to leave. She said that Hope needs the applicant in her life. She described Hope and the applicant as “soul mates” and said that she knew in her heart that “it would destroy them to be torn apart”.
39. The applicant said that he first saw and held Hope when she was 3 years old, and he has since had physical contact with her on prison visits when he has been in Hakea Prison in Perth. Their contact, however, has mainly been by telephone. He said that he loves Hope very much and that she is waiting for him to come and play with her and she does not want to have her 6th birthday until he is there.
40. The respondent conceded that the best interests of Hope should be regarded as a primary consideration in accordance with the Direction in this case and, although the Tribunal has some reservations about the appropriateness of that concession, it will treat Hope’s best interests as a primary consideration.
41. The Tribunal accepts that it would be in Hope’s best interests if the applicant were permitted to remain in Australia, and that, accordingly, this primary consideration militates against cancellation of the applicant’s visa. In the Tribunal’s assessment, however, the appropriate weight to be attached to this consideration in the present case, although substantial, is significantly less than would be the case if Hope were the child of the applicant and were, or were likely in the future to be, substantially dependent on him for emotional and material care and support on a daily basis.
Other considerations
42. Relevant considerations other than the primary considerations must, of course, be taken into account but, according to paragraph 2.17 of the Direction, they should “generally … be given less individual weight than that given to the primary considerations”. It may be, however, that in the circumstances of a particular case one or more of such other relevant considerations is, or are, so significant as to outweigh one or more of the primary considerations: see Re Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 444 at para 50; Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at para 54. Paragraph 2.17 of the Direction contains a non-exhaustive list of such other considerations which may be relevant to the circumstances of particular cases. The Tribunal will now examine those other considerations which the applicant seeks specifically to rely upon and any other considerations that it regards as relevant.
43. Foremost among the other relevant considerations relied on by the applicant is the impact of cancellation of his visa on the wellbeing of his sons, Travis and Marcus – especially Marcus. The applicant did not seek to rely on the impact on his first-born son, Jonathan, whom he has not seen since 1977.
44. Marcus, who is presently 25 years of age, was seriously injured in a motor vehicle accident in March 1995 and is, as a result, severely disabled. A report of Dr K Fong, Specialist Physician in Rehabilitation, Royal Perth Hospital, dated 8 September 2005, states:
“I have been asked to provide the following medical information on Mr Marcus Nolan, who received rehabilitation management over a number of years under my clinical supervision. It is relevant to state that I am a Specialist Physician in Rehabilitation.
Marcus is currently 25 years of age. On 17 March 1995 he was a front seat passenger in a vehicle which rolled over at high speed. Marcus sustained a severe diffuse brain injury associated with multiple skull fractures. He also had extensive other orthopaedic injuries. Marcus was hospitalised for almost nine months at Royal Perth Hospital before he was able to be discharged to a residential rehabilitation program in the community. Since then I have had sporadic contact with Marcus in my clinic. It is now more than 10 years since this young man’s episode of severe traumatic brain injury. He has been left with permanent and extremely severe disabilities. The main problems are a dense hemiplegia of his right sided limbs, right sided visual field defect, dysarthric speech and various cognitive deficiencies, particularly in terms of attention span and short term memory.
Marcus will clearly remain severely disabled in the long term. He will need a high level of long term support to enable him to continue living in the community.
…”
45. Marcus Nolan provided a written submission, dated 14 September 2005, in the course of which he stated:
“My whole life seems to be waiting for my Dad to get out. I really need him to help me get my life on track. If he is deported, I don’t know what I’ll do. I’ve waited so long to be with him.”
In his oral evidence he said that the applicant’s release will be “a life-time expectancy fulfilled”.
46. Dr Achimovich (see paragraph 24 above), who has known Marcus since 1993 and is very familiar with his circumstances and his relationship with the applicant, expressed the opinion that the ongoing care required by Marcus is labour intensive and the only person who could provide that care on a sustained basis is the applicant.
47. The applicant said in evidence that Marcus’ wellbeing is his top priority, and that he wished to live with, and care for, Marcus. He said that, in recent years, Marcus has been living in Perth with his mother or other relatives for 6 months of the year, and living in Albany (so that he can visit him in prison), either on his own in a rented flat or with friends or members of the local Christian community, for the other 6 months. Although he said that Marcus is unable to perform such “simple duties” as tying his shoe laces or making his bed, he acknowledged that he “has become self-sufficient” and that he would survive if he (the applicant) were removed from Australia.
48. Gail Nolan, the estranged wife of the applicant and the mother of Travis and Marcus Nolan, gave evidence regarding the very strong father-son bond between the applicant and each of his 2 sons, and said that both sons would be “devastated” if the applicant were removed from Australia and that Marcus, in particular, would “fall apart” in that event.
49. Janet Lowe, who described herself as a community advocate for Marcus Nolan, made a statement in support of the applicant’s being permitted to remain in Australia, and gave oral evidence. She stated that Marcus, owing to the massive head injuries he sustained in the motor vehicle accident in March 1995, is “emotionally, mentally and physically dependent on a level of care and support by adults”. She added that the most consistent emotional support that Marcus has received since he went into care has come from the applicant, and that Marcus’ “sense of purpose to his world is tied to the eventual release of [the applicant]”.
50. Various other letters of support from, amongst others, Margaret Whittington and Jack Bruning, which refer to the very close relationship between the applicant and Marcus, and Marcus’ need for the applicant’s ongoing care and support, are also in evidence.
51. As regards Travis Nolan, a letter from him dated 6 September 2005 is in evidence. In that letter he states that the applicant has been in prison since he was 6 years of age and that he and Marcus have been waiting almost their whole lives for him to be released. He said that, even though the applicant has been in prison for all that time, he is still the most important person in their lives, the only “structure” they have had, and the person they listen to above all others. He added that he and Marcus need the applicant and that the applicant also needs them because they are his life.
52. Dr Achimovich, who has known Travis since 1993, referred in her evidence to the “close and affectionate relationship” between the applicant and Travis which she observed on the occasions when she took Travis to visit the applicant in prison. Although the applicant and Travis are now incarcerated in different institutions, they are in regular telephone contact, she said. She also expressed grave concern for Travis’ wellbeing if the applicant were to be removed from Australia.
53. The applicant said in evidence that he had last seen Travis about 5 years ago and that Travis is presently in prison in Victoria for armed robbery offences. He said that Travis needs a mentor, someone to help him “adjust to a life with family values” and to “guide him into an understanding of real life responsibilities”. He said that he not only has a bond with Travis but, having lived a similar life to Travis, he understands the changes he may face. He said that it would be a “further, devastating blow” to Travis if, upon Travis’ release from prison, he (the applicant) had already been removed from Australia.
54. Lesleigh Hayes also gave oral evidence. She said that she first met the applicant 11 years ago during a prison visit when she was working with the Aboriginal Legal Service. She acknowledged that she was aware at that time that the applicant had killed a fellow prisoner. She said that their relationship has developed, especially over the last 5 years, into a very deep, loving and close relationship and that they had fallen in love with each other and planned to marry when the applicant is released from prison. The applicant gave similar evidence regarding his relationship with Ms Hayes, and he also referred to serious health problems experienced by her. Ms Hayes also referred to the close relationship between the applicant and her 26-year-old daughter (Skye) who has a learning difficulty, and she said that the applicant has provided emotional and mental support to her daughter and is a father figure to her. Ms Hayes said that it would be “devastating” for her and her daughter if the applicant were removed from Australia. She added that she did not know whether she would accompany the applicant to the UK in the event of his removal because she has 6 children, and also grandchildren, in Australia
55. Letters from the applicant’s parents and from his older brother, Peter, are also in evidence. The applicant’s mother, Gwenda Lorca, who resides in Western Australia, stated that the prospect of the applicant’s being removed from Australia has left her “physically and emotionally drained” and that, owing to her ailing health, if he were to be so removed she might never see him again. The applicant’s father, William Nolan, stated that deporting the applicant to the UK would “depress” all members of their family. Peter Nolan also referred to the serious impact that the applicant’s removal from Australia would have on the whole family.
56. As regards the impact of removal from Australia to the UK on the applicant himself, the applicant said in evidence that he would be “emotionally gutted” but that he would “survive”.
57. Having regard to the considerations referred to in paragraphs 44-56 above, the Tribunal accepts that the applicant’s removal from Australia would cause very great distress and emotional hardship to his sons, Marcus and Travis – especially Marcus – and that is a consideration which is deserving of substantial weight. The Tribunal is not satisfied, however, that the applicant’s continued presence in Australia is indispensable to Marcus’ survival (as the applicant himself appears to acknowledge) or wellbeing. The Tribunal is satisfied that Marcus has, and would have in the absence of the applicant, an extensive support network – including Gail Nolan (his mother), Lesleigh Hayes, Janet Lowe, Dr Achimovich, and various members of the Prison Fellowship and the Christian community in Albany (including those persons who provided letters of support in this case). The Tribunal also accepts that the applicant’s removal from Australia would cause great distress and emotional hardship to his very close friend and proposed spouse, Lesleigh Hayes, and would also cause substantial emotional hardship to his parents, siblings, Gail Nolan (his estranged wife, with whom he remains on good terms, and the mother of Travis and Marcus) and Skye Hayes (the daughter of Lesleigh Hayes), and the Tribunal attaches weight to those considerations. The Tribunal also attaches weight to the hardship that the applicant himself would suffer by reason of his removal from Australia, where he has lived for the past 38 years since arriving at the age of 8 years and where all his closest family members and friends live and where he has an additional extensive support network in the Prison Fellowship and Christian community in Albany. The Tribunal also accepts that the applicant’s removal from Australia would deprive him of the opportunity to carry out his present expressed intention to be involved in counselling work and the running of a “halfway house” in Albany. Although the applicant acknowledged that he would “survive” if returned to the UK, the Tribunal accepts that he would be severely disadvantaged there by reason of his separation from his close family members and friends and the lack of a support network such as he would have in Western Australia.
58. Additional considerations to which the Tribunal has had regard include the applicant’s progress towards rehabilitation and his recent good conduct in prison, and the fact that the relevant visa is a permanent visa (see subparagraphs (h) and (i), respectively, of paragraph 2.17 of the Direction). The Tribunal has also had regard to the fact that the relevant visa in this case is an absorbed person visa (together with a transitional (permanent) visa), and (as previously mentioned) to the duration of the applicant’s continued presence in Australia: Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121.
59. Having regard to all other relevant considerations in this case, the Tribunal’s assessment is that they collectively militate strongly against cancellation of the applicant’s visa.
The second primary consideration – the expectations of the Australian community
60. As previously mentioned (see paragraph 35 above), the expectation of the reasonable and fair-minded member of the community, as regards the cancellation
61. or non-cancellation of the applicant’s visa, should, in the Tribunal’s opinion, be informed by deemed knowledge of all relevant circumstances of the applicant’s case, including not only his criminal history but also his personal and other circumstances as previously discussed. Those circumstances include:
·the duration of his continued presence in Australia (namely, 38 years) since arriving in Australia from the UK at the age of 8 years;
·the very close and dependent relationship between the applicant and his sons, especially Marcus;
·the applicant’s progress towards rehabilitation while in prison, the positive contribution which he has made by way of peer support in prison and which he proposes to make to the local community upon his release;
·the relatively low risk of serious reoffending in his case;
·the presence of all his family members – his children and a grandchild, parents, siblings, nephews and nieces – very close friends, and an extensive support network in Australia;
·the absence of any such family members, friends and established support network in the UK (the receiving nation in the event of his removal from Australia).
62. It is the assessment of the Tribunal, however, that reasonable, fair-minded and relevantly-informed members of the Australian community would regard the crime of murder committed by the applicant in July 1994 (as previously described) as so heinous and abhorrent, and as involving conduct so intolerable and unacceptable in Australian society, that they would expect that the community be protected from any risk of his committing a like offence in the future and, accordingly, would expect that, notwithstanding all the abovementioned considerations supportive of the applicant’s case, he should be removed from Australia upon his release from prison. Accordingly, the second primary consideration – the expectations of the Australian community – militates, in the Tribunal’s opinion, in favour of cancellation of the applicant’s visa. The Tribunal, furthermore, regards this primary consideration as deserving of great weight.
Overall assessment of the primary considerations and other relevant considerations
63. 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 the Direction, whether those considerations, on balance, favour cancellation, or non-cancellation, of the applicant’s visa. In the Tribunal’s assessment, the first and second primary considerations, which both militate in favour of cancellation of the applicant’s visa, are entitled to greater collective weight in this case than the third primary consideration and other relevant considerations which strongly militate against cancellation of the applicant’s visa. In short, those considerations which favour cancellation of the applicant’s visa, in the assessment of the Tribunal, collectively outweigh those considerations which favour non-cancellation of his visa.
Conclusion
64. The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and other relevant considerations in this case, those considerations, on balance, favour cancellation of the applicant’s visa, and that, accordingly, the correct or preferable decision in this case is that the applicant’s visa be cancelled.
Decision
65. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .....................................................................................
AssociateDate/s of Hearing 5, 7 October 2005
Date of Decision 19 October 2005
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Henry Christie
Counsel for the Respondent Ms L McPherson
Solicitor for the Respondent Australian Government Solicitor
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