OLIVEIRA and Minister for Immigration and Citizenship
[2011] AATA 352
•26 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0998
GENERAL ADMINISTRATIVE DIVISION ) Re Pedro OLIVEIRA Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date26 May 2011
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review affirmed.
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Re Kasupene and Minister for Immigration and Citizenship [2008] AATA 766
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
26 May 2011 Mr R P Handley, Deputy President 1. Mr Oliveira has applied to the Tribunal for a review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Oliveira’s visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
2. Mr Oliveira was born in Portugal in July 1974 and is a Portuguese citizen. He first arrived in Australia on 15 July 1988 at the age of 14 and was granted permanent residency on arrival. He returned to Portugal for a period of approximately three years and eight months between 28 October 1996 and 26 June 2000, visiting Australia for four days in January 1997 during that period. On his last return to Australia in 2000, Mr Oliveira was granted a Class BB subclass 155 (Five Year Resident Return) visa.
3. Mr Oliveira has been convicted of a large number of offences in Australia. His first conviction on 19 November 1992 was for goods in custody for which he was fined $300. His most recent conviction, on 15 March 2011, was for two counts of larceny for offences committed between March and June 2010, for which he was sentenced to 12 months imprisonment with a non-parole period of four months concluding on 14 July 2011. A significant number of Mr Oliveira’s convictions are for break and enter or stealing‑related offences. He has been sentenced to terms of imprisonment of 12 months or more for 19 offences (the longest being two‑year sentences). However, because of many of those sentences running concurrently, these 19 offences resulted in five terms of imprisonment. He has also been sentenced for lesser periods than 12 months on a number of occasions.
4. On 29 June 2009, Mr Oliveira acknowledged receiving a formal counselling letter dated 23 June 2009 from the Department of Immigration and Citizenship (the Department) advising him that any further offending could result in the cancellation of his visa being considered. Mr Oliveira has committed and been convicted of a number of offences since then.
5. On 27 September 2010, Mr Oliveira was sent a ‘Notice of Intention to Consider Cancellation of Visa’ and invited to make a response. On 6 October 2010, the Department sent Mr Oliveira a letter inviting him to comment on further information that had been received. On 10 November 2010, the Department sent Mr Oliveira a reminder letter, having received no response from him.
6. On 22 November 2010 and again on 9 February 2011, Mr Oliveira was sent letters inviting him to comment on further information received by the Department. That information comprised an Australian Federal Police Certificate dated 12 November 2010 and an Immigration Report prepared by the NSW Probation and Parole Service Parklea Parole Unit dated 7 February 2011.
7. On 25 February 2011, a delegate of the Minister decided to cancel Mr Oliveira’s visa and a letter to this effect was sent to Mr Oliveira by registered post on 2 March 2011. On 18 March 2011, Mr Oliveira applied to the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
8. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
9. Mr Oliveira has been sentenced to terms of imprisonment of 12 months or more on five occasions. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Oliveira’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).
10. Direction No 41 contains a number of primary and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to cancel a visa.
11. The primary considerations in Direction No 41 are set out in paragraph 10(1):
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).
12. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of other considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the primary considerations. Those other considerations are discussed below.
PRIMARY CONSIDERATIONS
13. The primary considerations relevant in Mr Oliveira’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity. There appear to be no relevant international obligations in his case. The relevant primary considerations are addressed below.
the protection of the australian community
14. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
The seriousness of the conduct
15. With regard to the seriousness of Mr Oliveira’s conduct, the Tribunal notes that among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) is “serious theft”. While this term is not defined, I accept the Minister’s submission that the sentence imposed for a stealing‑related offence will often be an indication of the seriousness with which a court views an offence: Re Kasupene and Minister for Immigration and Citizenship [2008] AATA 766 at [54]. Mr Oliveira has been convicted of a significant number of stealing‑related offences for which he has been sentenced to terms of imprisonment of 12 months or more. Of these, 11 convictions attracted two‑year sentences (albeit that the sentences were served concurrently), one conviction attracted an 18‑month sentence and others 12‑month sentences.
16. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.
17. I note that Mr Oliveira’s criminal history spans a period of nearly 19 years, from July 1992 to March 2011, and that, apart from the three and half years when he was living in Portugal between October 1996 and June 2000, he appears to have offended regularly over that period. His most recent convictions, on 15 March 2011 were, however, in respect of offences committed between March and June 2010.
18. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
19. The Tribunal has been provided with the sentencing remarks of three magistrates who have sentenced Mr Oliveira on 7 January 2009, 18 January 2010 and 1 September 2010. On each occasion he pleaded guilty. Mr Oliveira said he has always pleaded guilty to the offences with which he has been charged, both because it saves time and public money and because he hopes to receive a lighter sentence by doing so. On 7 January 2009, Magistrate Moore commented that Mr Oliveira had “a history of matters of dishonesty, breaking and entering properties”. The Magistrate noted that the pre-sentence report:
… does not give you a great deal of support, nor the Court a great deal of confidence that you will amend your ways, reduce or remove yourself from a drug environment and perhaps make a positive contribution to society rather than an ongoing negative contribution. One can observe from the report that the basis of your offending is to provide, no doubt, funding in order that you can continue to feed your drug habit; that is, purchase drugs, supply your needs. …
Of course, it would appear as though you have had difficulties in the past, amended your ways and fallen back into the use of drugs and offending in order that you may fund your supply. Again, it would appear as though you have to enter upon release a drug rehabilitation unit and continue to maintain some form of rehabilitation support …
20. Magistrate Quinn, in sentencing Mr Oliveira on 18 January 2010, took into account exceptional circumstances in determining a short non-parole period: that the offence (break and enter and steal) was a “DNA case” that took place in 2007; Mr Oliveira’s guilty plea; the fact that his father was ill with kidney problems and, as Mr Oliveira’s mother was deceased, Mr Oliveira wanted to take care of him; and that Mr Oliveira appeared “to have done some rehabilitation”.
21. Magistrate O’Sullivan, sentencing Mr Oliveira on 1 September 2010, heard submissions from Mr Oliveira’s representative that when Mr Oliveira came out of prison last time (on 21 March 2010), he had a drug habit from “using drugs in gaol”. However, Mr Oliveira was now on the methadone program and would stay on that program on his release. The Magistrate noted that Mr Oliveira’s offending took place while he was on parole but that he pleaded guilty at the first available opportunity.
22. At the Tribunal hearing, Mr Oliveira told me that he started using marijuana at the age of 16 and started using “powders – heroin, coke and speed” at the age of 18. Even when, for example, he was working for his brother as a cement renderer, he still needed money to fund his drug habit and, he said, “drugs take over your head”.
23. An Immigration Report dated 7 February 2011, prepared by the NSW Probation and Parole Service, states that Mr Oliveira had not incurred any breaches of discipline since coming into custody on 20 June 2010. The NSW Department of Corrective Services records seven incidents between 1996 and 2002.
24. With regard to mitigating factors, Mr Oliveira’s evidence indicates that he was close to his mother who died unexpectedly at the age of 45 and whose death had a significant impact on him. It was obvious from the hearing that he is also now close to his father. Mr Oliveira also said that he became very depressed at one stage when his relationship with his girlfriend broke down and a friend living in the same house as him committed suicide. It appears that this may have affected his drug taking. I note that apart from one conviction for common assault and one for ‘assault police’, his offending has been non-violent although he has several convictions for ‘destroy or damage property’.
25. The nature and gravity of Mr Oliveira’s conduct over a long period of time is one that amounts to serious criminal conduct and demonstrates an ongoing disregard for the law.
The risk that the conduct may be repeated
26. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Oliveira’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders.
27. Mr Oliveira’s record includes breaches of a community service order, bond conditions and parole orders, most recently a breach of the conditions of his parole between March and June 2010.
28. I note Magistrate Quinn’s comment on 18 January 2010 that Mr Oliveira appeared to have done some rehabilitation. The Immigration Report refers to case notes stating that he completed maths and English classes in early 2009 and two sessions of the Getting SMART program in December 2008, but failed to complete the program. Mr Oliveira said he was unable to complete the Getting SMART program because, after two sessions, he was transferred to Bathurst Correctional Centre where the program was not available. Most recently, his enrolment in a TAFE metal fabrication course which he wanted to undertake was cancelled following the cancellation of his visa. He wanted to undertake this course because he has enjoyed working in the metal shop at Parklea Correctional Centre.
29. Mr Oliveira said he has completed a drug and alcohol program and an anger management program outside prison. He has not recently enrolled in any drug and alcohol rehabilitation program in prison because he would rather work full-time, and wants to stay away from the inmates who attend such courses as they continue to use drugs and are not serious about rehabilitation. When he was in prison in 2008, he asked for help but there were no courses available and no work and he was forced to hang around with others in prison using drugs.
30. Mr Oliveira said when he was released on parole in March 2010, he told the Parole Board he needed help with rehabilitation. Mr Oliveira explained that he broke the conditions of his parole when, having been allocated a probation officer who did not help him in finding an appropriate rehabilitation program, and having failed two urinalysis tests, he saw no point in turning up for appointments.
31. Since being imprisoned in June 2010, he has been on the methadone program, has not taken drugs, and has tried to arrange for his admission to the Odyssey House, a 12‑month drug and alcohol residential rehabilitation program in Sydney. He provided the Tribunal with a letter from Odyssey House to the Presiding Magistrate at Burwood Local Court dated 15 March 2011 (the date of his most recent convictions) stating their willingness to induct him into the program. The letter noted that Mr Oliveira’s request for rehabilitation could be motivated by his legal situation. Mr Oliveira also provided the Tribunal with information that he had obtained about another long‑term residential alcohol and drug rehabilitation program run by the Glen Centre on the Central Coast of NSW and in the Hunter Valley.
32. Mr Oliveira said he is too old to be involved with drugs and he avoids former friends who were associated with drugs. He is very remorseful about the crimes he committed and thinks about what happened all the time. He is aware that he has hurt people and caused suffering to his victims and also to his family. Notwithstanding this, his family keep on giving him chances and supporting him.
33. Mr Oliveira’s brother said his younger brother is a good man, who works hard, has a lot of friends and is loved by his family. In the past, his brother has not been strong enough in fighting for what he wants. He was badly affected by the death of their mother and later by the breakdown of his relationship with his girlfriend. It was then that he started hanging around with the wrong crowd again. Mr Oliveira’s brother said his brother is a good cement renderer, who has worked for him in the past and whom he would employ again in his cement rendering business.
34. Mr Oliveira’s cousin said Mr Oliveira is a good-hearted person who is easily led and needs help with his family around him. While Mr Oliveira has been in prison, they have spoken on the phone about once a month and the impression formed by Mr Oliveira’s cousin is that Mr Oliveira is changing. Mr Oliveira’s father also said he thought his younger son is calmer now.
35. There are no professional psychological assessments of Mr Oliveira available to the Tribunal. Whilst I accept that he wants to be free of drugs, is currently on the methadone program and recognises that he needs help with rehabilitation, I am not confident that, despite his stated intentions, he will not slip back into using drugs and reoffend if released into the community.
36. My view, based on Mr Oliveira’s extensive criminal record, non-observance of judicial orders and lack of rehabilitation, is that the risk of his reoffending is at least moderate given his long drug addiction. Given the serious antisocial criminal behaviour associated with his many convictions for offences involving breaking and entering and stealing, and my assessment of the risk of his reoffending, I am satisfied that the protection of the Australian community strongly favours the cancellation of his visa.
whether he was a minor when he began living in australia
37. The second primary consideration relevant in Mr Oliveira’s case, whether he was a minor when he began living in Australia, addresses the likelihood of a minor establishing greater ties and linkages to the Australian community. Mr Oliveira was aged 14 when he entered Australia on 15 July 1988 and was granted permanent residency. This primary consideration therefore favours his visa not being cancelled.
length of time ordinarily resident
38. The third primary consideration relevant in Mr Oliveira’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “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”. Mr Oliveira’s first conviction was on 19 November 1992 for the offence of ‘Goods in Custody’ in respect of which he was charged on 6 July 1992, when he had been in Australia four years.
39. Four years is not a lengthy period and in my view, the third primary consideration should be treated as a neutral consideration.
OTHER CONSIDERATIONS
40. As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations. Relevant other considerations in Mr Oliveira’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Portugal, the hardship that may be experienced by both Mr Oliveira and his immediate family members in Australia, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
family ties in australia
41. Mr Oliveira provided letters of support from his father, brother and cousin, all of whom gave evidence at the hearing, his brother and cousin by telephone. Mr Oliveira’s father is aged 64 and, it seems, has a number of medical problems, some of them currently undiagnosed. He has lost a lot of weight recently and is very stressed about the possibility of his son having to return to Portugal. I accept that he is not well. It was apparent in the hearing that father and son have a strong emotional attachment. Both were visibly moved by what the other said and tears were shed on both sides. As mentioned, Mr Oliveira’s mother died unexpectedly 14 years ago and the father and son attachment has, it would seem, grown stronger over that time.
42. Mr Oliveira’s older brother told me that his father is very stressed with worry about Mr Oliveira’s situation. Father and younger son are very close and more like best friends. They need each other. Mr Oliveira’s brother said he has his own family, including a 14‑year‑old son, and lives 30 minutes’ drive away from his father. He is also sometimes away on business. While he maintains close contact with his father, he needs his younger brother to help look after their father.
43. Apart from his father and brother, Mr Oliveira is obviously close to his cousin who gave evidence at the hearing, and he has another cousin who apparently forms part of the close family group. Mr Oliveira’s father’s brother and his wife (the cousins' parents) also live in Sydney but have been in Portugal for the past 12 months looking after an elderly parent and hope to return to Australia soon. The family get together at Christmas and Easter and for family birthdays and see each other on a regular basis. Mr Oliveira’s brother said they all stick together and support each other.
44. I am satisfied from the above evidence that Mr Oliveira has close family ties with his immediate family in Australia and, for this reason, he would suffer hardship if he has to return to Portugal, as would other family members, in particular his father.
family ties in portugal
45. As stated above, Mr Oliveira came to Australia at the age of 14 and thus completed much of his education in Portugal. He said he left school in Australia at the age of 16 and worked for his father as a cement renderer. He left Australia to return to Portugal with his father for a period of over three‑and‑a‑half years between 1996 and 2000, apart from four days in January 1997 that he spent in Australia. Mr Oliveira said that during that time in Portugal he and his father “fixed” his father’s house there. His father still owns the house although it has been tenanted. His father said the first floor of the house was tenanted but the tenants have now left. He does not think the house is in a habitable condition. It is very damp and dirty and it would be expensive to fix it up.
46. Mr Oliveira said his family in Portugal blame him for his mother’s death. His mother died after she stopped taking medication she needed, having separated from his father and joined a religious cult who took her money. His grandmother insisted that his mother’s body be returned to Portugal for burial. His grandmother is now old and in a nursing home. Mr Oliveira said some of the family in Portugal also kept asking his father for money and, ultimately, in order to stop this, Mr Oliveira threatened them. His relationship with family members there is, therefore, poor.
47. Mr Oliveira’s father confirmed that he has a poor relationship with some family members in Portugal and does not communicate with them. He was last in Portugal six years ago when he visited old school friends and other acquaintances. He has a sister there who has cancer. His brother who lives in Sydney is currently in Portugal with his wife looking after his very old mother-in-law. They will be returning to Sydney. He also has a brother who lives in Canada.
potential hardship experienced by the person or family members
48. Mr Oliveira speaks Portuguese, he has lived in Portugal as an adult and, while he says he knows little of the culture, I am not satisfied that he would not be able to adapt to life there. Provided his father’s health does not deteriorate, there seems no reason why he should not visit Portugal to see his son, and, it would seem there may be some possibility of somewhere for them to live if his father’s house can be repaired. Equally, other family members can visit Mr Oliveira in Portugal. Of course, the family can also maintain contact by telephone and other electronic means.
49. At the age of 36, Mr Oliveira is still relatively young and, apart from drug-related problems, seems to be healthy and able to work. While the economic situation in Portugal is reportedly poor, there seems no reason why Mr Oliveira could not re-establish himself there, albeit that he will obviously suffer hardship at first while adapting to a new life. It appears he is a skilled cement renderer, enjoys working as a metal fabricator and, according to his brother, is a good worker.
previous formal warnings
50. I note that Mr Oliveira received a formal warning from the Department dated 23 June 2009 advising that any further offending could result in the cancellation of his visa being considered. He said he received this when he was in prison where another inmate said he had received a lot of such letters. However, a prison officer advised him that this was his last chance. Mr Oliveira attributed the offences he committed while on parole between March and June 2010 to the breakdown of his relationship with his probation officer, the lack of help in finding rehabilitation, and his being charged with a break and enter offence he did not commit. He acknowledged that he had, however, pleaded guilty to all the charges. He said he did this in order to secure a lighter sentence. Mr Oliveira asked the Tribunal for another chance. He said he feels remorse for his past misconduct and needs help with rehabilitation. If he were to reoffend, he would accept his having to return to Portugal.
CONCLUSION
51. In weighing up the relevant primary considerations, as stated above, I am satisfied that the protection of the Australian community strongly favours the cancellation of Mr Oliveira’s visa. He has an extensive criminal record over a long period, a drug habit, and there is insufficient evidence to show that he has made any significant progress towards rehabilitation. The risk of his reoffending is at least moderate. In my view, this consideration significantly outweighs the second primary consideration – the fact that he was a minor when he began living in Australia – and I have found that the third primary consideration, the length of time he was resident here before engaging in criminal activity, is a neutral factor.
52. The protection of the Australian community also significantly outweighs the other considerations. While I accept that for Mr Oliveira to return to Portugal will cause him hardship and also, in particular, his father, in my view, the difficulties and hardship can be addressed and there seems no reason why Mr Oliveira should not adapt to living in Portugal and to his situation there. I also note that Mr Oliveira has previously received a warning about his conduct and has gone on to reoffend.
53. Weighing up the primary and other considerations as a whole, I have therefore concluded that the decision to cancel Mr Oliveira’s visa should be affirmed.
DECISION
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: ..........[sgd]....................................................................
A. Veness, AssociateDate of Hearing 18 May 2011
Date of Decision 26 May 2011
Representative for the Applicant Self-represented
Representative for the Respondent J Cumming, Clayton Utz
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