Paula Amir and Minister for Immigration and Citizenship
[2013] AATA 541
•2 August 2013
[2013] AATA 541
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2429
Re
Paula Amir
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J L Redfern
Date 2 August 2013 Date of written reasons 2 August 2013 Place Sydney Decision Summary
Decision under review is set aside and substituted with a decision that the applicant’s visa not be cancelled.
........................................................................
Senior Member J L Redfern
Catchwords
MIGRATION AND CITIZENSHIP – Visa cancellation – Character test – Criminal history – Seriousness of conduct and risk of further offending – Protection of Australian community - Duration and nature of the person’s ties to Australia –Tolerance to low level criminal conduct where non-citizen has long established links to Australia - Underlying mental health issues and addictions - Decision under review is set aside and substituted with a decision that the applicant’s visa not be cancelled.
Legislation
Migration Act 1958 ss 501; 499; 500
Cases
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Secondary Materials
Direction no. 55 – Visa refusal and cancellation under s 501 cl 6.2; 6.3; 7; 8; 6.3; 9.1; 9.1.1.; 9.1.2; 9.2; 10
REASONS FOR DECISION
Senior Member J L Redfern
2 August 2013
The applicant is a citizen of the United Kingdom. She moved to Australia in July 1988 when she was 24 years old on a visitor visa. She applied for resident status based on her marriage to an Australian citizen and she was granted a permanent visa on 27 November 1989. The applicant has resided in Australia for about 25 years.
On 27 September 2012, the applicant was sentenced to a term of imprisonment of 12 months, with a non-parole period of eight months, for breaching an apprehended violence order. She was released on parole on 27 June 2013 into immigration detention at Villawood Immigration Detention Centre. There is no dispute that the applicant has a history of criminal conduct fuelled by drug and alcohol addiction.
On 7 May 2013, a delegate of the Minister for Immigration and Citizenship made a decision to cancel the applicant’s visa after having given her a written warning 12 months earlier. The applicant seeks a review of the decision to cancel her visa.
The Minister has discretion to cancel a visa if the applicant does not satisfy the character test set out in the Migration Act 1958 (Cth) (the Migration Act). The applicant does not satisfy this character test because of her criminal history and the issue for determination is how the discretion should be exercised in the circumstances of this case. If the applicant’s visa is cancelled, she will be removed to return to the United Kingdom.
LEGAL FRAMEWORK
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass 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 section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or two or more terms of imprisonment where the total of those terms is two years or more. The applicant has been sentenced to a term of imprisonment for a period of 12 months or more and, as such, has a substantial criminal record for the purposes of the Migration Act. She therefore does not pass the character test and the discretion under section 501(2) is enlivened.
Section 499(1) of the Migration Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers. The decision-maker, including the Tribunal, must comply with the written directions (section 499(2A)).
The Minister has delegated the exercise of the discretion under section 501(2) and from time to time has issued written directions under section 499(1) of the Migration Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. At the time the delegate made the decision to cancel the applicant’s visa, the relevant direction in operation, which commenced on 1 September 2012, was Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55). Direction no. 55 is still in operation and is therefore the relevant decision for me to consider in this review.
Direction no. 55 states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (cl 6.2(1)). It also sets out six principles “of critical importance in furthering that objective”, which are stated to “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (cl 6.2(1)). These principles must inform the exercise of the discretion and involve a balancing exercise (cl 7(1)). The principles are as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clauses 7 and 8 provide guidance about the decision-making process.
Clause 7 provides that a decision-maker must take into account the considerations identified in Direction no. 55 to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa. The decision-maker must also determine whether the risk of harm by a non-citizen is unacceptable. Relevantly, it is noted:
This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
According to clause 8, decision-makers must have regard to the primary and other considerations as set out in Direction no. 55 and information and evidence from independent and authoritative sources should be given “appropriate weight”. The primary considerations should generally be given greater weight than the other considerations and one or more of the primary considerations may outweigh other primary considerations. Both primary and other considerations may weigh in favour of, or against, cancellation.
There are four primary considerations, two of which are relevant to this case, being: protection of the Australian community from criminal or other serious conduct and the strength, duration and nature of the person’s ties to Australia. There is no evidence, nor were there any submissions by or on behalf of the applicant, that the other two primary considerations of the best interests of minor children in Australia and international non-refoulement obligations are relevant to his case.
The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims) and the extent of any impediments the person may face if removed from Australia.
THE EVIDENCE
The evidence was contained in the documents served by the Minister pursuant to section 500(6F) of the Migration Act in addition to documents obtained from New South Wales Police Service, Corrective Services New South Wales and Justice Health New South Wales. The applicant also gave oral evidence and was questioned about her previous criminal history.
The facts in this matter are not in dispute.
The applicant is 49 years old. She moved to Australia in 1988 at the age of 24 after the death of her husband in Sri Lanka. She is a citizen of the United Kingdom but has resided in Australia since her arrival. The applicant married an Australian citizen but later divorced. She was granted permanent residency on 27 November 1989 based on her marriage.
The applicant was educated in the United Kingdom and states that she has a Diploma in Catering and Hotel Management. She travelled to Sri Lanka on holiday after completing university, where she met her husband. They married when she was about 21 years old. According to the applicant, she became estranged from her mother because her mother did not approve of her marriage. Her husband was a professional diver and died in tragic circumstances by drowning. They had been married for about three years at the time of his death.
The applicant said that after the death of her husband she decided to move to Australia where her father lived. The applicant's father is an Australian citizen and has, according to the applicant, lived in Australia for 35 years.
The applicant worked as a chef from 1988 to 1992 at the North Cronulla Hotel and from 1993 to 1999 in a hotel in San Souci. She fell from a balcony in 2000 and fractured her neck. According to the applicant she has had memory problems since this injury and it took her a long time to recover. She could not work after the accident and has been on the disability support pension for a number of years, although she has worked in casual employment from time to time.
In her personal details form dated 26 May 2013 provided to the Department of Immigration and Citizenship, the applicant stated that she had obsessive-compulsive disorder, attention deficit and hyperactivity disorder and anxiety. The applicant confirmed this in her evidence and told the Tribunal that she had received treatment for these conditions over the years. She said that the death of her first husband had a significant impact on her and she has had unresolved grief issues for much of her life. She used drugs, and later alcohol, to “mask” her problems.
By about 1992, the applicant developed an addiction to drugs. In late 1992 she was convicted of soliciting on four occasions and on January 1993 she was convicted of numerous counts of obtaining a benefit by deception totalling $3,228. The applicant opened a cheque account and used cheques to purchase goods when there were insufficient funds in her account to fund the purchases. On 15 February 1994 the applicant was convicted of larceny for stealing items worth $14.28 from a supermarket and on 15 December 1994 she was convicted of two counts of supplying a prohibited drug. She was convicted of stealing a facsimile machine on 29 January 1996 and ‘break, enter and steal’ and other assorted offences on 9 September 1996. This latter conviction related to the applicant, together with another person, breaking into a neighbour's unit and stealing a television, video recorder, clock, leather bag, wallet, knives and a passport. The goods were subsequently recovered by police and returned to the owner.
The applicant gave evidence that these offences were driven by the need for money to fund her addiction. She was either fined or placed on a good behaviour bond for these early offences.
According to the applicant she stopped using drugs sometime after the last offence in 1996 but she cannot recall when. She was convicted on 5 October 1999 of altering a prescription by adding Serepax to the prescription. Serepax is a medication used for anxiety. The applicant said she forged this entry because she had run out of the Serepax medication. However, this explanation is difficult to understand given that the police fact sheet records the applicant had visited her doctor in the morning. It is unclear why the applicant could not have obtained this prescription by lawful means through her doctor. This was unexplained, although I note this offence took some took place some 14 years ago and it is not surprising that the applicant could not recall this matter with any precision.
After this conviction there are no records of any further offences until May and October 2007. In May 2007 the applicant was disqualified from driving after being convicted of driving with a low range of prescribed concentration of alcohol. She was later convicted of driving while disqualified, refusing to undergo a breath analysis and possessing a prohibited drug. She was disqualified for two years and placed on a good behaviour bond for 12 months. Thereafter there was a two year gap in the applicant’s offending. On 16 September 2009, the applicant was convicted of being at of being in possession of stolen goods and was placed on a good behaviour bond for 12 months. There are no further details in relation to this offence.
From March 2010 to April 2012 the applicant was convicted on eight charges of ‘destroy or damage property’ (relating to four incidents) and from September 2011 to September 2012 she was convicted of numerous breaches of domestic apprehended violence orders (AVOs). A number of these offences related to the same incidents.
The first offence related to an incident in January 2010 when the applicant was intoxicated. She verbally abused a neighbour and smashed the neighbour’s outside light in the middle of the night. When police arrived in the afternoon, the applicant threw a paint can at the police car, later threw the contents over the car and kicked the car. She was convicted with two counts of damage to property, fined, ordered to pay compensation and placed on a good behaviour bond for 12 months.
The second incident was on 20 October 2010. The applicant smashed four windows of a rental property after being given notice to vacate. She was convicted on two counts of ‘destroy or damage property’ on 25 November 2010 and placed on a good behaviour bond for 12 months.
The third incident arose out of an argument between the applicant and her former partner in July 2011. It is recorded in the police fact sheet that the applicant was intoxicated at the time. She smashed a large sandstone rock on the windscreen of her partner’s car shattering the windscreen. She also smashed a wine bottle and used the smashed bottle to hit her partner’s car. The applicant's partner had previously obtained an AVO against the applicant on 25 November 2010 for a period of 2 years. On 13 September 2011 the applicant was convicted of breaching the AVO and with the offence of ‘destroy or damage property’. The previous convictions of 25 November 2010 were ‘called up’ (given the applicant was still on a bond) and she was sentenced to a term of imprisonment for 12 months, fully suspended. The applicant said that she reacted this way because her partner was abusive.
The last two incidents involved an elderly friend of the applicant who she has known for about 20 years, Mr John Perry. Mr Perry is 79 years old. The applicant has lived in Mr Perry’s unit for periods over a number of years. She claimed to be his carer. Records produced by the New South Wales Police Service and Corrective Services reveal that the applicant and Mr Perry had a volatile relationship. While Mr Perry provided support to the applicant from time to time, they argued and Mr Perry asked the applicant to leave his home on numerous occasions when she was intoxicated. When the applicant refused, Mr Perry called police. It appears that this was an ongoing issue and on 7 December 2011, an interim AVO was made against the applicant. Relevantly, the order provided that the applicant must not approach Mr Perry within 12 hours of consuming intoxicating liquor or illicit drugs.
There is no dispute that the applicant breached this AVO on many occasions. The first series of breaches occurred in December 2011 and on 1 January 2012. The second breaches occurred on 29 August and 22 September 2012.
The applicant was convicted in respect of the first breaches on 13 April 2012. She was also convicted of three counts of damage to Mr Perry's property after putting a hose through Mr Perry’s unit window. The applicant said that she did this because she was concerned Mr Perry would not open the door and she saw him lying on the floor. He had various medical conditions and she was concerned that he was unconscious. She said that she put the hose through the window to rouse him. This explanation was not referred to in the police report and was unconvincing given that the applicant did not call the ambulance. The applicant was sentenced to 12 months imprisonment, with a non-parole period of six months. Her sentence commenced on 1 January 2012 and she was released on parole on 30 June 2012.
According to a report from New South Wales Probation and Parole Services dated 12 September 2012, the applicant's response to supervision was “unsatisfactory”. She was unreliable, continued to drink and was asked to leave a friend’s home because of unacceptable behaviour.
The applicant returned to Mr Perry’s home on 29 August and 22 September 2012 in breach of an AVO. This resulted in the applicant's conviction on 23 September 2012. The applicant was intoxicated and Mr Perry asked her to leave his home. She refused and the police were called. The applicant contended, both at her sentencing hearing and at the hearing before me, that she had visited Mr Perry at his request. This was rejected by the sentencing Magistrate.
At the sentencing hearing in the Sutherland Local Court, the Magistrate Bartley observed as follows:
Well I've carefully read the fact sheet in respect of both matters and Ms Amir’s record. There are several recent imprisonment sentences for contravening apprehended violence orders. Regrettably sentences of even six months imprisonment haven't deterred her from committing these last two rounds, breaches of AVOs.
I've carefully considered Mr Buckman is helpful submissions. Expressions of bare intention not to reoffend I give little weight...... It was said that the accused was invited around but in the facts sheet in respect of the matter to which she has pleaded guilty, H ending 495, the facts are the victim has told police on numerous occasions in the past that he does not want her at his premises but he feels sorry for her when she comes over and does not feel he can kick her out. This is what she has pleaded guilty to. Favourable facts for an accused have to be proved by the accused on the balance of probabilities and I'm not satisfied as to the assertion of been being invited around.
I conclude with regret that it is very likely that the offender will reoffend if released. She almost compulsively is committing breaches of AVOs. Much weight must be given to the protection of the victim in this matter, to individual deterrence and also to general deterrence.
On 26 April 2012, the Department of Immigration and Citizenship notified the applicant that her visa may be liable to be cancelled given her criminal history. The applicant was invited to make submissions. She made submissions and by letter dated 31 May 2012, the applicant was notified that a delegate of the Minister had decided not to cancel her visa. She was given a warning that her visa may be cancelled if she committed further offences and the applicant acknowledged receipt of this warning on 9 June 2012.
The applicant gave evidence that during her last term of imprisonment, she completed an eight week program called the ‘POISE program’ for criminal conduct and substance abuse treatment. This was completed in February 2013. She also completed a six week program in December 2012 for management of emotions, anxiety and conflict and an advanced occupational health and safety course in April 2013. According to the applicant, the POISE program had a profound effect on her and she was now prepared to “take responsibility” for her actions. She agreed her previous conduct was “appalling” but said that she has not consumed alcohol for 10 months. She was confident she could remain sober, obtain work and contribute to the community of allowed to stay in Australia, although conceded that she had not been tested in the community in this regard.
There was no evidence from the applicant's father or Mr Perry, although Mr Perry attended the hearing and sat at the back of the hearing room just behind the applicant.
Case notes from the New South Wales Department of Corrective Services referred to various conversations with Mr Perry while the applicant was serving her first period of imprisonment. The following comments are recorded by the case officer in respect of a conversation with Mr Perry on 20 January 2012:
Call from cl's friend John Perry. Said he was at court with cl yesterday and was upset to be told by Legal Aid that he is the problem and he should not allow her in his home. John said he has known her for 20 years and is concerned about her. He said cl needs help re alcohol use and admits it. He suggested 12 months in custody to get her sorted. I told him I would note his concern and thanked him for keeping in touch.
On 10 April 2012 the following was recorded in the case notes:
John said that Paula was pushed off a balcony (3rd floor) about 2-3 years ago and broke her neck. He said that since that time Paula has also suffered from short-term memory loss - apparently she did some frontal lobe damage from the fall. John said that Paula can remember everything from 20 years ago however can’t remember anything from 20 minutes ago. He said she needs to write everything down however forgets to look at what she has written.
I asked him how he thought she might perform on a CSO (since she appears to be working well in custody) and he said that she would need to be reminded to go every week and will probably always be late. He said that he thought she would probably not be able to complete a CSO - not because she wouldn't want to, but because she would not be reliable enough when she is reliant on herself only.
John said that Paula still has contact with her father in Adelaide and her other family in the UK. He said he has often heard her on the phone to them.
John confirmed that Darren is living in Townsville however he said that Darren still phones Paul (sic) to ask her for money.
John said that Paula will not be living in his place on her release, although they will still remain friends.
The applicant gave evidence that she had regular contact with her father and her last contact with her mother was by telephone in September 2012. In her letter to the Department of Immigration and Citizenship dated 16 May 2013, the applicant stated that Mr Darren Shepherd had been her partner for over 6 years, he was an Australian citizen and they were planning to marry in October. There was no evidence from Mr Shepherd about these matters. While documents produced by the New South Wales Department of Corrective Services record that there was ongoing contact between the applicant and Mr Shepherd during her incarceration, Mr Shepherd was described in the notes as the applicant’s “ex-partner”. It was also noted that Mr Shepherd told a Correctional Services officer it would not be appropriate for the applicant to live with him post-release.
The only evidence given by the applicant about Mr Shepherd during the hearing was that he had been abusive. This is corroborated by records produced by the New South Wales Police Service, which noted in November 2011 that police were concerned for the applicant’s welfare. She was taken to hospital with injuries and it was later recorded that when police questioned Mr Shepherd the applicant “became very frightened and begged police not to take action against the defendant”.
During the final stages of her incarceration at Emu Plains Correctional Centre, the applicant was diagnosed with a tumour in her lungs. The applicant says the tumour is benign and surgery has been planned to remove the tumour in the coming weeks.
SUBMISSIONS OF THE PARTIES
The applicant’s lawyer, Mr Levingston, submitted on behalf of the applicant that she was a difficult woman, her behaviour had been unacceptable and she had probably alienated many of her friends and supports over the years. The applicant's criminal offending was a consequence of her drug and more recently alcohol addiction. This did not excuse her behaviour but it explained her criminal history. The applicant had participated in the POISE program and even though she had not been tested in the community, there were reasonable prospects for her rehabilitation. The applicant had skills but most importantly had lived in Australia for more than half her life. Even if it was accepted that there is a risk the applicant will reoffend, the risk of harm to the Australian community is low. There was no evidence of violence and the offences committed by the applicant were at the lower end of seriousness. This was reflected in the applicant's various sentences.
Having regard to the applicant's links with Australia, the less serious nature of her offences and the hardship she was likely to suffer if she was required to leave Australia, it was submitted that the risk of harm was acceptable and would be tolerated by the Australian community.
The advocate for the respondent submitted that the applicant had committed a number of serious property and AVO offences in recent years. These offences would have been frightening and intimidating for the victims, especially Mr Perry, who is elderly. The applicant had offended while on parole, bail or while serving a suspended sentence or good behaviour bond. She commenced offending within four years of arriving in Australia and she has a long criminal history of offending. It is significant that the applicant reoffended after a warning by the Department about the possible cancellation of her visa. There is a high risk the applicant will reoffend given her long-standing addictions. There is no evidence that the applicant has significant links with the Australian community. The applicant has family in the United Kingdom and there was no barrier in her returning to the country where she spent her formative years. The applicant would not be forced to leave Australia until her current medical conditions were resolved and if she needed any ongoing medical treatment; it was likely this treatment would be available in the United Kingdom.
The respondent contended that the protection of the Australian community therefore weighed in favour of cancelling the applicant’s visa.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Clause 9.1(1) of Direction no. 55 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm. It is further stated that:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, regard must be had to the nature and seriousness of the conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct (cl 9.1(2)).
Any conduct that forms the basis of a finding that a person does not pass the character test is considered to be serious (cl 9.1.1(1)(d)). Regard must be given to the sentence imposed, the frequency of the person’s offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending (cl 9.1.1(1)(e) – (g)). Violent and/or sexual crimes are viewed very seriously (cl 9.1.1(1)(a)) and crimes committed against vulnerable members of the community (such as minors) are serious (cl 9.1.1(1)(b)).
In considering whether a person represents an unacceptable risk of harm to the Australian community, decision-makers should have regard to the principle that tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)). According to clause 9.1.2, in making this assessment decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) the likelihood of the person engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time in the community since their most recent offence.
The applicant’s criminal conduct is longstanding but nonetheless in the lower range of seriousness. She was given good behaviour bonds and suspended sentences for most of her criminal offending, except for the last two incidents, when she was sentenced to imprisonment for 12 months with non-parole periods of six and eight months respectively. Section 501(2) was not enlivened until September 2011, when the applicant was sentenced to imprisonment for 12 months, fully suspended. Her crimes were destructive and I accept it would have been intimidating for the victims who had their property destroyed. The applicant’s actions were destructive but any violence was applied to objects, not people. It is significant that the applicant did not perpetrate her crimes on the person of any of her victims, with the exception of Mr Perry, who she wet with a hose when he did not allow her to enter his unit.
I do not accept the applicant’s evidence that she was trying to rouse Mr Perry. This assertion is not referred to in any of the police reports or the fact sheet to which she pleaded guilty. This conduct was unacceptable and offensive to Mr Perry, which is no doubt why he told Corrective Services officers he did not want the applicant to live with him and wanted her to stay away when she was intoxicated. Contrary to her lawyer’s submissions, the applicant has not accepted responsibility for this conduct and has attempted to deflect the seriousness of her actions by casting them in a sympathetic light. This reflects poorly on her character and her prospects for rehabilitation.
It is relevant that the applicant has offended repeatedly after being given many chances and a formal warning by the Department (refer cl 9.1.1(1)(g) and (i)), although against this it should be noted that the sentences imposed by the Courts have been at the lower end of the scale (refer cl 9.1.1(1)(e)) recognising the less serious nature of the applicant’s crimes.
The respondent submitted that the risk the applicant will reoffend is high. Based on the available evidence, I am satisfied that there is, at the very least, a real risk the applicant will reoffend in the future. A ‘real risk’ of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
The applicant has a long history of offending. She has repeatedly breached AVO orders, parole and has reoffended even after being warned about the possible negative consequences by the Department of Immigration and Citizenship. In recent years, the applicant’s repeat offending has been the consequence of her alcohol addiction. It is clear from the reports of her criminal conduct since at least 2010 that the applicant becomes destructive and abusive when she is intoxicated. As conceded by her lawyer, she has probably alienated her friends and possibly her family. The applicant says the POISE program has had a significant impact on her and she has been alcohol free for 10 months. While I accept the applicant’s evidence that she has good intentions and some insight into her failings, she has not been tested in the community. Her first period of incarceration did not have the desired impact and there is evidence she was offered alternative accommodation on her release, which she refused. This resulted in the applicant becoming homeless and eventually seeking out Mr Perry, in breach of an AVO. The evidence is that once the applicant becomes intoxicated, she reoffends. Her addiction is not an excuse but rather evidences the increased likelihood she will reoffend.
Given this risk, the issue for consideration is whether the nature of the risk is “unacceptable”.
As noted in cl 9.1.2(1) of Direction no.55, “decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”. In this case, the risk of harm is moderate and, based on the applicant’s history, is more likely to be directed to property offences. The breaches of the AVOs were in respect of two people with whom she had a close relationship. Both have distanced themselves from the applicant and it is therefore less likely any future misconduct will affect them. It is also relevant to note that there is evidence in the New South Wales Police Services records that the applicant may herself have been physically abused by Mr Shepherd. Her conduct should be viewed in this context.
The applicant’s lawyer described the applicant’s conduct as “very disruptive”. In my view this understates the seriousness of the nature and extent of the applicant’s offences. In contrast, the respondent describes the applicant’s crimes as violent crimes committed against vulnerable members of the community. This overstates the position. As already noted, the applicant’s crimes were less serious, they were not directed to harming people, and there was no physical abuse. It is also significant that Mr Perry continued to support the applicant, even after the first incident when the applicant turned the hose on Mr Perry’s unit.
Having regard to these matters, I find that the consideration of the protection of the Australian community weighs in favour of cancelling the applicant’s visa but not strongly so.
Strength, duration and nature of ties to Australia
Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Migration Act, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted in the cl 6.3 principles, “a higher level of tolerance” of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a “positive contribution to the Australian community” and their links to Australia and Australian citizens or permanent residents is a relevant consideration.
The applicant has spent just over half her life in Australia. She has worked for nine years full time employment and in casual jobs. She did not offend for many years and it was not until 2010 that her misconduct started to escalate. It appears that the applicant was in a volatile relationship with an Australian citizen for a number of years. This does not explain her misconduct and erratic behaviour but this relationship was unlikely to have assisted the applicant in turning her life around. There is little evidence about the applicant’s links with the Australian community. In her statement of 16 May 2013 the applicant referred to her church, friends and family. According to the applicant, in addition to her father, she has an uncle and nine cousins, nieces and nephews who live in Australia. There is no evidence about how often the applicant visits her relatives, although she says she has regular contact with her father. According to case notes from the Department of Corrective Services, Mr Perry told case workers that the applicant was a “lovely person when not under the influence”. The applicant has known Mr Perry for about 20 years and when she was is not drinking; it is possible she has provided him with assistance.
Given the applicant has lived in Australia for over 25 years, has spent most of her time living in the community and has not always been alcohol or drug addicted, it is likely that the applicant has made some positive contributions over the years to the Australian community. The applicant came to Australia when she was young. She did not spend her formative years in Australia but a number of very significant events, which have no doubt affected her life and wellbeing, have taken place in Australia. The applicant married her second husband, separated from him, had a life changing accident 13 years ago and a long-term volatile relationship with her most recent partner, who is Australian.
I find that this consideration weighs against cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant. There are four considerations listed, of which three are said to be relevant to the applicant.
The first non-primary consideration that may be relevant is the effect of cancellation on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely (cl 10(1)(a)). I find that the cancellation of the applicant’s visa and her removal to the United Kingdom may have an impact on her father and possibly Mr Perry but there is insufficient evidence for me to form a view about whether this impact would be significant. There is no evidence that either is dependent on the applicant for their care and wellbeing, although both may be emotionally impacted.
The second non-primary consideration that may be relevant is the impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour where that information is available (cl 10(1)(c)). The applicant has breached AVOs in respect of Mr Perry on several occasions. In sentencing the applicant, Magistrate Bartley observed that “much weight must be given to the protection of the victim in this matter”, referring to Mr Perry. However, the difficulty in this matter is that there is no evidence from Mr Perry about the impact a decision not to cancel the applicant’s visa would have on him.
As previously noted, after the first incident, Mr Perry continued to support the applicant. They have known each other for 20 years and he has been sufficiently attached to the applicant to help her, even though, as the applicant’s lawyer conceded, she is very difficult. Mr Perry attended the hearing. He could not be called by the applicant in support of her case as his evidence would have had to have been served at least two business days before the commencement of the hearing (s 500(6H) of the Migration Act). The applicant was not represented until the morning of the hearing and her lawyer was limited to the material that had been filed and served. The respondent did not call Mr Perry. While it is somewhat unsatisfactory that Mr Perry’s view could not be obtained, given the paucity of evidence, I do not find that this consideration weighs in favour of cancellation.
The only other non-primary consideration relevant to the applicant’s case is the fourth matter set out in cl 10(1)(d), namely the extent of any impediments that the person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards. It was submitted by the respondent that there are no significant impediments to the applicant in returning to United Kingdom. The basic living standards between United Kingdom and Australia are similar, the applicant spent her formative years in the United Kingdom, there are no language or cultural barriers and the applicant has immediate family in the United Kingdom. I accept that the applicant has poor health but she will not be removed from Australia until her immediate issues are resolved. The United Kingdom has comparable health services and there is no evidence to suggest that these services will not be available to the applicant.
In contrast, I also accept that the applicant has lived most of her adult life in Australia and may find it difficult to adjust. Given the evidence about the applicant’s mental health and alcohol dependency issues, dislocation to another country at this time of her life may prove to be detrimental.
On balance, this factor does not weigh in favour of cancellation of the applicant’s visa but nor does it weigh strongly against cancellation. The applicant’s personal circumstances and mental health issues are a complicating factor and it is difficult to predict, with any certainty, how removal of the applicant from Australia will affect her mental health..
WEIGHING THE CONSIDERATIONS AND CONCLUSION
Two of the primary considerations are relevant, one weighs in favour of cancellation and the other against. The other considerations tend to count against cancellation but these considerations are generally to be afforded less weight than the primary considerations. It is not a case of simply tallying the primary and other considerations against each other but rather making a qualitative assessment, having regard to those considerations, of whether “the risk of future harm from a noncitizen is unacceptable”. One or more primary considerations may outweigh other primary considerations.
Having regard to all relevant considerations and the available evidence, I do not accept the contention of the respondent that the protection of the Australian community outweighs all other considerations in the circumstances of this case. The applicant's crimes were at the lower end of the scale of seriousness. She has spent most of her time in Australia living in the community and has established ties to Australia after 25 years. While the applicant’s contribution to the community has not always been a positive one because of her addictions, she has underlying mental health issues and physical disabilities. There is evidence that some of the applicant’s problems are related to significant events and relationships while she was living in Australia. In my view, this is a case where “Australia may afford a higher level of tolerance of criminal conduct in relation to a non-citizen who has lived in the Australian community for most of their life” (cl 6.3 (4) of Direction no.55).
Weighing all the relevant considerations in this matter I therefore conclude that the correct and preferable decision is that the decision of the delegate should be set aside and substituted with a decision that the applicant’s visa not be cancelled.
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern.
.....................[sgd]..............................................
Associate
Dated 2 August 2013
Date of hearing 18 July 2013 Advocate for the Applicant Mr C Levingston Advocate for the Respondent Mr S Kikkert
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