Peers v Minister for Immigration and Multicultural Affairs

[2000] AATA 698

PEERS and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W2000/181

DEPUTY PRESIDENT FORREST

Perth
4.8.2000
Extempore Reasons for Decision [2000] AATA 698

Christopher Gerard Peers – in May 1997 you were sentenced to 7 and a half years imprisonment for your involvement in the importation of cocaine and for the attempted possession of cocaine and 2 and a half years for attempted possession of ecstasy tablets – a total sentence of 10 years and a minimum term of 4 years 9 months commencing from 9 March 1999, the day you were taken into custody.

On 10 May 2000, a delegate of the Minister for Immigration and Multicultural Affairs made a decision to cancel your visa under s501 of the Migration Act 1958 ("the Act"). Under sub-section 501(2) if the Minister reasonably suspects that you do not pass the character test, and you do not in fact pass the character test, then the Minister may cancel your visa.

Clearly you do not pass the character test in para 501(6)(a).  You have a "substantial criminal record" as that term is defined in para 501(7)(c) of a sentence to a term of imprisonment of 12 months or more. The issue before me is whether the discretion should be exercised so as to permit you to remain in Australia notwithstanding that you do not pass the character test.

In determining the issue of visa cancellation a Ministerial Direction dated 16 June 1999 has been issued by the Minister which has the force of s499 of the Act. In part 2 the Direction sets out the matters to which I must have regard in the exercise of the discretion. The Direction provides three "primary" considerations and a number of "other" considerations to which a decision maker must have regard. No individual consideration can be more important than a primary consideration, but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to cancel a visa. This requires a balancing exercise having due regard to the primary considerations but also taking into account all relevant considerations. The relevant primary considerations in your case are firstly the protection of the Australian community and members of the Australian community and secondly the expectations of the Australian community. In dealing with the first of these considerations, the protection of the community is of particular importance when, as here, your offences involve drugs.

The nature and seriousness of your offences is described in the sentencing remarks of Judge Yeats.  You were arrested along with your co-offender when you went to a hotel to take possession of a quantity of cocaine and ecstasy tablets which had been brought into Australia.  The prohibited substances had street values estimated at $83,000.  You denied knowledge of the drugs but a jury found otherwise.  You have since confessed your guilt to your family after maintaining your innocence to family and friends for a considerable period. 

The sentence you are serving reflected the gravity of you offending.  You experimented with drugs since late teens, at times speed cocaine and ecstasy, but you are not an addict.  Your motivation was simply greed – an opportunity to make some easy money in the night club scene where you worked and in which the intended recipients of the drugs would doubtless have included the young people who frequent those establishments.  Your behaviour is inexcusable.  You have displayed a callous disregard of the harmful effects of drug taking on the health of young Australians.  That is the insidiousness of the drug trade – its victims are invariably the young people in our community. On any view your offending is extremely serious and I take that into account.  Your criminal history also includes counts of hindering police in 1997 (fined $100) and in 1998 while on bail for the drug offences you were again fined $100 for hindering police in an incident which also lead to a fine and licence disqualification for driving under the influence of alcohol.  For present purposes these offences are not significant. 

On the question of recidivism, I accept that you are genuinely remorseful for what you have done, that your expressions of remorse are not simply a self-interested response to the predicament you find yourself in despite the fact that the timing of your acknowledgment of your guilt has been so late in the day in coming. You showed no remorse at your trial but unlike the court which sentenced you, which was considering your circumstances then, I also take into account your current circumstances. I am prepared to accept that motivating at least in part your attitude to your offending is the shame you felt for what you have done.  Your efforts at rehabilitation since your incarceration are a positive sign of a person intent on making amends.  You have spent your time in prison working in the carpentry shop and studying, awaiting mature age entry into tertiary studies with the intention of studying for an Arts degree majoring in Journalism by external study from Deakin University in 2001.  Your behaviour generally in prison has not been of any concern to authorities.  Having considered the written and oral evidence and having regard to the objective indications of your rehabilitation, as evidence by your work and study, leads me to the conclusion that the likelihood of repeat offending is low.  Anything less than a low risk of re-offending given the seriousness of your offending is unacceptable.  In making that assessment I also take into account the fact that you have the support of a close knit family.  This support which is integral to the rehabilitation process has been maintained throughout your incarceration. 

On the question of general deterrence the sentence imposed upon you contains an element of deterrence.  You have been deprived of your liberty for a substantial period of time.  The impact of general deterrence in the present context is a vexed question.  That this is so is because the persons likely to be discouraged from criminal activity of the kind committed by you would be confined to your acquaintances as the only group of persons who are likely to know in the event of your visa being cancelled.  Generally speaking decisions concerning the removal of persons from Australia attract little publicity.  Accordingly, while general deterrence is an important factor, its impact would I think be meagre.

As a general statement, the Australian community has little sympathy with persons who engage for personal gain in the importation of drugs on a scale that your offending revealed because of community awareness of the havoc caused by drugs.  Viewed in isolation it may probably be that the community would expect your removal from Australia but the informed bystander appraised of all the facts of your efforts to rehabilitate yourself would, in my view, not necessarily conclude that you have forfeited your right to remain as part of the Australian community. 

The "other" considerations referred to in the Direction (see para 2.17) are essentially hardship considerations.  These are, as the Direction provides, to be given less weight than that given to the primary considerations.

You were born on 22 September 1967 and are by birth a British citizen.  You arrived in Australia as an 8 year old on 6 April 1976 with your parents and a younger brother and sister.  The family settled in Perth and has lived here since.  Except for one short overseas holiday you have resided continuously in Australia since arriving here in 1976. I am satisfied that the ties of your family are to Australia.  The only remaining family tie to England is an elderly grandparent.  Effectively you have no ties there of any description, family, business or otherwise.

Your parents, sister and brother are citizens of Australia with families living in Perth.  Your father, as the evidence disclosed, is in poor health.  He suffers from prostate cancer for which he is receiving treatment.  You are single and at the time of these offences were living with your parents.  While there was no evidence your parents depended upon you for financial support, there was evidence that their financial resources are modest which, quite apart from your father's health, would make travel overseas extremely difficult, particularly for your father, in the event of your removal from Australia. In all the circumstances I am satisfied that your removal from Australia would cause great distress to your family as well as yourself. 

The list of the "other considerations" contained in the Direction is not an exhaustive one.  I agree with Mr Walker that your length of residence in Australia is a relevant consideration.  I note that while reference is made to this factor in the Criminal Deportation Direction – see para 22(b) – which reads:

"while it is less likely that potential deportees who have spent the greater portion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported."

it is not referred to in the Direction under consideration. Because of your length of residence in Australia you cannot be deported under s 201 of the Act but the result of an affirmation of the delegate's decision under review in these proceedings would also mean your removal from Australia. Accordingly the length of your residence in Australia is equally a relevant factor. The fact that you arrived here as a minor does not act as a fetter to the discretion as to whether a visa should be cancelled. Clearly the fact that you arrived in Australia as a minor and the length of your residence in Australia are relevant circumstances and I take into account that removal would cause you severe hardship. As I said earlier your ties are in Australia, with your family and an extensive network of friends here. Although you are not an Australian citizen, you are as I see it in every other sense an Australian, having spent your life here since arriving as a young boy.

In the matters required to be taken into account, the nature and seriousness of your offending is the factor of most weight in favour of cancellation of your visa.  Because you are in my assessment an acceptable risk of not re-offending, the protection, safety and welfare of the Australian community does not require that you be removed.  I also have taken into account the length of time you have spent in Australia, your family ties here, the hardship in resettling in a country you left as a child and, after hearing your evidence, the capacity that I think you have of making a worthwhile contribution to this country in the future.  In getting involved in the offences which have been the genesis of these proceedings you have let down your family, yourself and more importantly, the community.  I think you realise that and have started on the journey back to being a responsible member of the community.  In my opinion this is a case where the weight of the relevant considerations falls on the side of the discretion being exercised in your favour.

Accordingly, I set aside the decision under review and remit the matter to the Minister with a direction that your visa should not be cancelled under s501 of the Act.