Paredes and Minister for Immigration and Citizenship
[2011] AATA 262
•19 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2011/0493
GENERAL ADMINISTRATIVE DIVISION ) Re
HERNAN PAREDES
Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date19 April 2011
PlaceSydney
Decision The Tribunal affirms the decision under review.
..................[SGD].....................
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 – Ministerial Direction No 41 applied – primary considerations – protection of the Australian community – risk that conduct may be repeated – recidivism – evidence of rehabilitation – international obligations – other considerations – family ties and nature and extent of any relationship with the Australian community – decision under review affirmed.
Migration Act 1958 (Cth) ss 499, 500, 501.
Ministerial Direction [No. 41] – Visa refusal and cancellation.
Green v Minister for Immigration and Citizenship [2008] 100 ALD 346.
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.
Oliver and Minister for Immigration and Citizenship [2010] AATA 1049.
R v Henry & Ors (1999) 46 NSWLR 346.
Re Otineru and Minister for Immigration and Citizenship [2008] AATA 873.
Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054.
Rosson and Minister for Immigration and Citizenship [2010] AATA 880.
Tien Hung Vu v R [2006] NSWCCA 188.
REASONS FOR DECISION
19 April 2011 Ms N Isenberg, Senior Member INTRODUCTION
1. Mr Hernan Paredes is a citizen of Chile. He arrived in Australia on 13 October 1987 when he was aged 22 years. He was granted a K4771 Special Humanitarian Program visa on his arrival and was granted a BF-155 Resident Return visa on 1 August 1994. He subsequently departed Australia on 5 August 1994, and returned on 16 September 1994. He again departed Australia on 8 November 1996 and returned on 15 February 1997. He has remained in Australia on a Class BF Transitional (Permanent) visa.
2. After multiple convictions from 1991, on 25 August 2010 Mr Paredes was sentenced to imprisonment for a term of 16 months. On 27 January 2011, the Minister for Immigration and Citizenship (the Minister) cancelled Mr Paredes’ visa on the ground that he did not pass the character test in s 501 of the Migration Act 1958 (Cth) (the Act). Mr Paredes seeks review of that decision.
RELEVANT LEGISLATION & POLICY
3. By s 501(2) of the Act, the Minister may cancel a person’s visa 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 she or he passes the character test.
4. A person is taken not to pass the character test if she or he has a substantial criminal record: s 501(6)(a). A person has a substantial criminal record if he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: s 501(7). Although Mr Paredes disputed some of the convictions noted on his record (see below), there was no dispute that he had been sentenced to a term of imprisonment in excess of 12 months. Mr Paredes does not pass the character test.
5. Section 501(2) gives the decision-maker discretion to cancel a visa if the visa holder has failed the character test. The discretion in s 501(2) must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation (the Direction), which commenced on 15 June 2009. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a). It requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: paragraphs 5.1(2) and 10.1.
6. The Direction gives a decision-maker guidance in considering the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. A wide range of factors must be taken into account, including whether the person began living in Australia as a minor, the length of time she or he has been ordinarily resident in Australia and any relevant international obligations: paragraph 5.2.
7. A decision-maker must take into account four primary considerations in every case and must take into account any of the seven other considerations listed if relevant to the applicant’s case.
8. The primary considerations are set out in paragraph 10(1) of the Direction:
(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;
(d)any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child (CROC).
9. The other considerations are set out in paragraph 11. They must be taken into account where relevant but, generally, should be given less weight than the primary considerations: paragraph 11(2). The other considerations relevant in this case are:
(a)family ties, the nature and extent of any relationships:
(i)the extent of disruption to the person’s family, business and other ties to Australia community;
...
(d)any links to the country to which they would be removed. For example, where the person has no familial ties or support in that country, this may be considered in the person’s favour;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:
(i)including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere;
...
(g)whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act.
THE ISSUE
10. The issue in this case is whether the Tribunal should cancel Mr Paredes’ visa. Mr Paredes does not dispute that he has a substantial criminal record in Australia. His submission is that the risk of him re-offending is now reduced, and that it is in his interest, and the interests of his adult children and his partner, that he remains in Australia and that he be ‘given another chance’.
CONDUCT OF THE HEARING
11. Mr Paredes appeared at the hearing unrepresented. He provided a statement, as did his son, Mr Pablo Paredes, which were filed and served in accordance with directions by the Tribunal and s 500(6J) of the Act. Mr Paredes claimed that his partner had faxed a statement to the Tribunal and to the solicitor for the Respondent ‘about two weeks ago’ but nothing was received. Further, Mr Paredes claimed that his partner (who was present at the hearing) had a fax receipt to the effect that the statement had been forwarded as he asserted, but this also was not made available in accordance with s 500(6J). I therefore declined to hear evidence from his partner.
12. At the hearing Mr Paredes and his son gave evidence.
BACKGROUND
13. Mr Paredes is now aged 45. He is separated from his wife, but is in a relationship. Mr Paredes has two children from his marriage aged 22 and 27.
14. Mr Paredes was sentenced to a term of imprisonment of 16 months on 25 August 2010.
15. Mr Paredes is presently on remand in relation to further offences, but I have not taken those matters into account in coming to my decision.
PRIMARY CONSIDERATIONS
(a) Protection of the Australian community from serious criminal or other
harmful conduct, particularly crimes involving violence
16. Factors relevant to assessing the degree of risk to the Australian community of Mr Paredes’ continued stay include the seriousness and nature of his conduct and the risk that it may be repeated. Violent crimes are of special concern: paragraph 10.1.1(1).
(i) The nature and seriousness of Mr Paredes’ conduct
17. Paragraph 10.1.1(2) lists ‘serious’ offences, none of which apply to Mr Paredes. The list, however, is not exhaustive.
18. Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the conduct against the community. Mr Paredes has been sentenced to terms of imprisonment of more than 12 months on a number of occasions. The Respondent contended that these are substantial terms of imprisonment that reflect the seriousness of Mr Paredes’ criminal conduct.
19. Paragraph 10.1.1(3) also provides that due regard must be given to the extent of the person's criminal record, including the number and nature of offences, the period between offences, and the time elapsed since the most recent offence. Mr Paredes has a criminal record spanning from 1991 to 2010. He has offended frequently and regularly and has been convicted of a large number of offences, including three convictions for supplying heroin. The last recorded conviction was on 25 August 2010, for offences committed in June 2009.
20. In assessing the nature and seriousness of Mr Paredes’ conduct, the Tribunal cannot ignore these convictions. As the Full Court explained in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
21. Mr Paredes did not dispute the lengthy record produced from NSW Police as correctly referring to him (see below). He observed that no conviction related to a crime of violence. He gave evidence though that he considered many of the offences attributed to him were as a result of police persecution and harassment. He denied that he had ever sold heroin or any other drug. He said that it was just that the police found amounts of heroin at his premises when they conducted a search. I observe that the facts in relation to the offences of 25 August 2010 included evidence of possession of equipment such as scales and resealable plastic bags said to be often used by drug suppliers. The nature and gravity of an offence such as supplying drugs has a significant detrimental effect on the community and is something that would rightly be considered a serious offence.
22. In relation to some offences he attempted to offer explanations, and claimed that in respect of his many driving offences he had never put anyone in danger. However, it is not open to the Tribunal to go behind the convictions and impugn the central facts of the offence, the sentence or the policy reasons behind criminalising such behaviour, only to gauge the nature and gravity of the offence in relation to the character test.[1]
[1] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [45].
23. Paragraph 10.1.1(4)(a) provides that evidence from independent and authoritative sources about the person, such as judicial comments, are also to be considered. The Respondent submitted that the Tribunal should give Magistrate Flack’s 2002 remarks weight when assessing the seriousness of Mr Paredes’ conduct: that because of Mr Paredes’ prior record, the seriousness of the offences, the protection and welfare of the community, no course other than imprisonment was considered appropriate.
24. In considering the seriousness and the nature of Mr Paredes’ conduct, the Tribunal is required to take into account any relevant mitigating factors that Mr Paredes puts forward: paragraph 10.1.1(4)(b). In balancing the mitigating factors advanced by the applicant, all factors which are relevant to the totality of the applicant’s conduct must be taken into account. It is not for the Tribunal to go behind the conduct or the factors, but only to take into account those relevant mitigating factors. Those factors do not need to relate specifically to the seriousness of each individual offence and general mitigating factors may be taken into account.[2]
[2] Green v Minister for Immigration and Citizenship [2008] 100 ALD 346 at [26].
25. Mr Paredes gave evidence that he had been drug addicted, that he had been ‘eaten alive’ by his addiction and had become ‘a shadow’. However, drug addiction is not a mitigating factor in sentencing.[3] Indeed, when it leads to the commission of other crimes, the community has all the more need to be protected.[4] In limited circumstances, drug abuse may be pertinent to the issues of impulsiveness or planning, the ability of the offender to exercise judgement and its impact upon prospects of rehabilitation or recidivism during sentencing.[5] It is appropriate to apply the same principles when exercising the discretion in s 501.[6] On that basis, Mr Paredes’ drug abuse is not a relevant mitigating factor.
[3] R v Henry & Ors (1999) 46 NSWLR 346 at 382-395.
[4] Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at [34].
[5] Tien Hung Vu v R [2006] NSWCCA 188 at [59]-[64].
[6] Re Otineru and Minister for Immigration and Citizenship [2008] AATA 873 at [74].
26. It is clear that the nature of Mr Paredes’ conduct over a long period of time is one which amounts to serious criminal conduct which demonstrates an ongoing disregard for the law.
(ii) The risk that the conduct may be repeated
27. Paragraph 10.1.2(1) states that a person's previous general conduct and total criminal history are highly relevant to assessing the risk of re-offending. Paragraph 10.1.2(2) provides that the factors particularly relevant to assessing risk are:
(a)a recent history of convictions which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation; greater weight to be given to independent and authoritative sources; and
(c)evidence that the person has breached judicial orders and other relevant undertakings.
Criminal history and recent convictions
28. The NSW Police criminal history upon which the Respondent relied referred to Mr Paredes as having in excess of 30 aliases, most of which were a variation of his name and date of birth. Mr Paredes disputed the criminal history provided by the Australian Federal Police which included a reference to convictions – in one of the aliases quite unlike his own name - in Queensland before Mr Paredes had even arrived in Australia. The Respondent did not rely on those matters and I have not taken them into account. Because of the large number of aliases and because of Mr Paredes’ concerns, I specifically asked him to identify, on the NSW Police history which of the recorded convictions did not relate to him. He agreed that all matters related to him.
29. Of the offences, many were associated with Mr Paredes’ drug habit (since age 28), including the earliest of the offences, in 1991. He has been convicted of possession of a prohibited drug (at least twice) and supply prohibited drug (at least twice), although he said that it was ‘deemed supply’ only because of the quantity. There have been convictions for break and enter, goods in custody, stealing and shoplifting. He has also been convicted of uttering counterfeit money.
30. Further convictions include a series of offences related to driving while unlicensed in 1994, 2000 (several occurrences), 2004, 2006 (several occurrences), 2009 and 2010.
31. The Respondent contended, and I agree, that Mr Paredes’ criminal history and general conduct strongly suggest a high risk that he will re-offend.
Evidence of rehabilitation
32. Mr Paredes said that he wants to be a member of the community again. He said he has been careless with his actions and ‘immature’, although he agreed that he was aged 26 at the time of his first offence in 1991. He would like to be a counsellor so others may learn from his mistakes.
33. Mr Paredes had been on a Drug Court program but that had had to be terminated because Mr Paredes went into custody. On being sentenced in 2008, Mr Paredes was noted by Magistrate Quinn to have entered and concluded the Magistrates Early Referral Into Treatment (MERIT) program and there were ‘a number of very positive changes’ made by Mr Paredes in this program, although there was one occasion of drug use in the course of the program. But within a year of concluding the program, on June 2009, Mr Paredes was charged with another drug offence, for which he was sentenced in August 2010. Mr Paredes claims that he is now drug free and, that since October 2010, when he was charged with drug possession in gaol according to the 17 January 2011 report of the Probation and Parole Service, he no longer requires a ‘drug substitute’.
34. There is no later objective evidence as to whether he is in fact drug free as he asserts and whether he would remain drug-free when in the community.
35. The Probation and Parole Service’s assessment was that Mr Paredes had not seemed to progress while in custody. His institutional conduct was regarded as generally satisfactory, though he had not completed any education or rehabilitation courses during his most recent period of imprisonment. Mr Paredes said this was because he had been moved. He said that in December 2010 he had ‘applied to attend a rehabilitation course’, but this was not noted by the Probation and Parole Service in its report. Presently, because he is on remand, no courses are offered. He said he saw a psychologist for the first time only recently.
36. Mr Paredes’ son Pablo said that his father had been ‘working hard to make his life better’. In his statement he wrote that, over the last four to five years his father had been ‘fighting hard to rehabilitate himself’. Despite this, in that period Mr Paredes has committed multiple offences. Further, Pablo said he had not heard from his father since September 2010. I therefore place little weight on this evidence.
37. Mr Paredes agreed that he had previously tried to stop taking drugs but had relapsed.
38. There is insufficient evidence to persuade me that Mr Paredes has rehabilitated since his most recent incarceration, and this weighs in favour of cancellation.
Breaches of judicial orders
39. Magistrate Quinn in 2008 considered Mr Paredes had made ‘tentative but very real attempts to change his way of life’, and suspended the proposed term of imprisonment. As it transpires, her confidence was not justified: in 2009 Mr Paredes was charged with supply of heroin. Mr Paredes said that he now realises the seriousness of his predicament (of having his visa cancelled). In 2008 he faced the serious consequences of re-offending, namely that he would be gaoled and, notwithstanding this, he re-offended. This tends to suggest that he does not take such consequences seriously, and that his behaviour and actions are not constrained by court-imposed sanctions.
40. In sentencing him in 2006 Judge Dive of the Drug Court observed that Mr Paredes had been ‘undeterred’ from driving when, as discussed above, he had already been disqualified from driving on several previous occasions. In 2008 Magistrate Quinn noted that, by that time, he had already served a number of terms of custody for driving whilst disqualified.
41. I consider that Mr Paredes’ breaches of the law and court imposed obligations indicate that there is a high risk that he will again engage in conduct in breach of the law, and this weighs in favour of cancellation.
42. In relation to the first primary consideration, I note that in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, the Tribunal held that a real risk of re-offending is one which is not far fetched or fanciful and can include a low or minimal risk.
43. Taking into account Mr Paredes’ previous conduct and repeated and recent criminal behaviour, I find there is a real risk that he will re-offend, and that he presents a real risk of harm to the Australian community.
(b) Whether Mr Paredes was a minor when began living in Australia
44. Paragraph 10.2 provides that:
"(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time."
45. Mr Paredes was aged 22 when he first arrived in Australia. In Oliver and Minister for Immigration and Citizenship [2010] AATA 1049, an applicant arrived in Australia aged 21. The Tribunal considered that he had not spent his formative years in Australia and this weighed in favour of cancelling the applicant’s visa. I prefer the approach that because Mr Paredes was not a minor when he began living in Australia, his circumstances do not attract favourable consideration.
(c)The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
46. Paragraph 10.3(1) provides that:
"Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal conduct or activity that bears negatively on their character.
Note: For example, a period of more than 10 years residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration."
47. Mr Paredes has resided in Australia since 1987, a period of 24 years. His first conviction related to an offence committed in 1991, less than four years after arriving in Australia.
48. In total, Mr Paredes has spent considerable time ordinarily resident in Australia. However, this consideration refers to the amount of time a person was ordinarily resident in Australia "prior to engaging in criminal activity or activity that bears negatively on their character": paragraph 10.3(1). Therefore, Mr Paredes had spent only a minimal period of time ordinarily resident in Australia before engaging in criminal activity.
49. This consideration weighs in favour of the cancellation of Mr Paredes’ visa: Oliver and Minister for Immigration and Citizenship at [57] and Rosson and Minister for Immigration and Citizenship [2010] AATA 880 at [95].
(d) Any relevant international law obligations
50. Reflecting Australia’s obligations under the Convention on the Rights of the Child (CROC), if there is a (non-adult) child in Australia who is potentially affected by the decision, the decision-maker must have regard to best interests of the child: paragraph 10.4(1). There is no evidence of any children in Australia whose best interests will be affected by the cancellation of Mr Paredes’ visa. Therefore the CROC is not a relevant consideration.
51. However, another international obligation is relevant:
“10.4.3 Other relevant international obligations
(1) The following are to be considered:
(a)The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether law fully imposed (Second Optional Protocol);
(b)The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and
(c)The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.”
52. Mr Paredes arrived in Australia on a humanitarian visa, which I was informed did not involve any assessment of his claims under the Refugees Convention. An International Obligations and Humanitarian Concerns Assessment was prepared in relation to Mr Paredes in 2004. This concluded that the cancellation of Mr Paredes’ visa would not result in a breach of Australia's international obligations.
53. Mr Paredes agreed that his humanitarian visa was granted on the basis of his association with the then opposition Socialist Party in Chile during the rule of General Pinochet. The report referred to country information which stated that Chile has been a democracy since 1990 and that the Socialist Party was voted into power in Chile in January 2000. On this basis, the report concluded that Mr Paredes’ previous political activity in Chile would not place him at risk of acts of torture or harassment if returned to Chile. There was no evidence that members of the Socialist Party are subject to any discrimination or harm in Chile. Mr Paredes agreed that Chile is now a democracy. Country information was provided to the effect that political parties in Chile can operate without restriction. Mr Paredes agreed that it was fair to say that the political climate in Chile has changed since he first came to Australia.
54. Mr Paredes said that his concerns were broader than his former political affiliations. He said that he had been part of a Catholic group from 1979-1987 and that members of the group have been ‘killed off’ - members had died in 1991, 1993 and 1995 and that in 1998 three went missing and, as far he as he knew, some were in prison in 1997. He noted that probably nothing would happen to him, but he still fears the government because the record is still there of his behaviour in the past. He said people would still be interested in him though, and he believes he ‘will not last longer than two years’. He said he is ‘sick of running’. He said he was ‘hunted’ in Chile when he was there in 1994 for four to five weeks. Nonetheless he also returned in 1997, but he said he only returned because his younger brother was very ill, so he decided to ‘take the risk’ and continually moved around in a ‘cat and mouse game’. He believes he will be targeted because he is ‘the only one left’.
55. Mr Paredes’ concerns are highly speculative and there was no evidence to support his contentions, and I do not consider that Australia's non-refoulement obligations are relevant to him.
OTHER CONSIDERATIONS
56. These must be taken into account if relevant, but generally should be given less weight than primary considerations: paragraph 11(2).
57. The relevant considerations in this case are considered below.
Family ties, the nature and extent of any relationships; hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; and links to the country to which they would be removed
58. Mr Paredes said that ‘everything I love is here [in Australia]’. He would like an opportunity to be a father to his children again.
59. Mr Paredes said his son, daughter and partner would suffer hardship if he had to return to Chile.
60. I observed that neither Mr Paredes’ son nor daughter had visited him in prison, nor did his partner. Mr Paredes said that his children may have been looking after their mother who had not coped well with her father’s death three years ago.
61. His son, Pablo, said that he had visited his father in gaol when he had been a child and had found it very distressing; he did not want to see his father in that situation again. Although in his statement Pablo said he keeps in contact with his father, he said in his evidence that he did not know where his father had been for the last few months, and he had not heard from him since September 2010. If his father returned to Chile they would keep in contact, but it ‘would not be easy’. He noted that he is not financially dependent on his father but, in the past, if he needed money his father would assist.
62. Mr Paredes had not contacted his children by phone while he was in gaol because, he said, he needed his money to pay lawyers. Mr Paredes did send one or two letters to his son, but Pablo never responded. This would not show the relationship to be a strong one.
63. Pablo said that his father had ‘always’ been in contact with him as well as his sister. However, Mr Paredes’ evidence was that he had been unable to get in touch with his daughter. He said that ‘on the day he was arrested’ she turned to drugs and is homeless.
64. There was little evidence about Mr Paredes’ new partner, other than her name and address, that she is a widow with two adult children, and that they have been in a relationship for 2 1/2 years.
65. Mr Paredes’ evidence was that he would be unable to contact his children by phone from Chile because the ‘Post Office’ is run by the corrupt government and someone would come after him. There was no evidence to support that contention.
66. Although I accept that Mr Paredes and his son, probably his partner and possibly his daughter, would prefer that he remain in Australia, this does not outweigh the primary consideration of the protection of the Australian community.
67. Mr Paredes said he now, after 24 years, has no links with Chile. He said he still fears for his life if he were to return to Chile because he will ‘die without [his] family’. He is afraid to leave his loved ones. Once he gets back there he will lose his family and he will have nothing to live for.
68. In his evidence Mr Paredes said that his last contact with his family in Chile was 14 years ago in 1997 when he claims he ‘risked [his] life’ to go visit his brother. He now claims he no longer has any contact with his brother.
69. In November 2010 Mr Paredes completed a personal details form in which he wrote that he had a mother and father, two brothers, a sister and 16 aunts and uncles living in Chile. In the same document he wrote that he was in monthly contact by phone with his mother and father, and was often in contact with his brothers. However, Mr Paredes was reported as having told an officer of the Department in December 2010 that he has two brothers and a sister residing in Chile and that his parents were ‘long dead’. In his evidence to the Tribunal he said his mother died in 2004 and his father died in 2002.
70. Pablo gave evidence that he understood his (paternal) grandmother, Mr Paredes’ mother, was alive but had not personally spoken to her for about two years. He did not know if his father was in contact with the family in Chile. He thought his father’s family ‘would not want [the Applicant]’ if he returned to Chile, and thought they were ‘indifferent’ towards him. However, Pablo had a care package for his father from his uncle and aunt in Chile.
71. Having regard to Pablo’s evidence, I prefer the conclusion that Mr Paredes has relatives in Chile with whom he is still reasonably close. Mr Paredes speaks and writes Spanish so would have no problems communicating. I consider that it would not be a significant hardship for Mr Paredes to return to Chile. He has been able to maintain a relationship with relatives in Chile by telephone, so he would be likely to be able to maintain contact with his children and partner in Australia similarly.
Health
72. There is no evidence to suggest that Mr Paredes has any health problems, or that he requires any specialised care that would not be available in Chile.
Previous formal advice
73. Mr Paredes was formally warned in relation to his criminal conduct and the character provisions of the Act on 30 November 2006 but, nonetheless, continued to offend after that date, with a number of further convictions recorded in 2007, 2008, 2009, and 2010.
THE BALANCE OF CONSIDERATIONS
74. Of the primary considerations, the protection of the Australian community weighs heavily in favour of cancelling Mr Paredes’ visa. The remainder of the primary considerations are also in favour of refusal. All other considerations, except in relation to the disappointment to his son and probably his daughter and partner, also weigh in favour of cancelling Mr Paredes’ visa.
75. I consider the primary considerations, especially the high risk of Mr Paredes repeating his criminal conduct, and all other considerations weigh in favour of cancelling Mr Paredes’ visa. The primary considerations of the protection and expectations of the Australian community outweigh any hardship to Mr Paredes and his family, such that the discretion in s 501 of the Act should not be exercised in the applicant's favour.
DECISION
76. The Tribunal affirms the decision under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ....................[SGD]............................................................
C Taylor, AssociateDates of Hearing 4 April 2011
Date of Decision 19 April 2011
Applicant Self-represented
Solicitor for the Respondent Michelle Stone, DLA Phillips Fox
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