Pemberton and Minister for Immigration and Citizenship
[2009] AATA 692
•10 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 692
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2943
GENERAL ADMINISTRATIVE DIVISION ) Re AMANDA PEMBERTON Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date10 September 2009
PlaceAdelaide
Decision
The tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel Ms Pemberton’s visa not be exercised.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION - Class TY Sub Class 444 (Special Category) Temporary Visa - cancellation of visa - discretion to cancel visa where applicant fails character test - serious criminal offence - Ministerial Direction No. 41 - primary and other considerations - interpretation of second and third primary considerations where ties and linkages to Australian community are negative - decision under review set aside.
Migration Act 1958 (Cth), s 501(2)
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555
Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
10 September 2009 Deputy President D G Jarvis 1. The applicant, Amanda Denise Pemberton, held a Class TY Sub Class 444 (Special Category) Temporary Visa. A delegate of the respondent decided to cancel her visa on the grounds that she had not satisfied him that she passed the character test for the purposes of s 501 of the Migration Act 1958 (Cth) (the Act). Ms Pemberton has applied to this tribunal for review of the delegate’s decision.
Issue before the Tribunal
2. Ms Pemberton was convicted of murder in 1998, and sentenced to life imprisonment with a non-parole period that was reduced on appeal to 14 years. She concedes that she does not pass the character test. The only issue before me is whether I should exercise the discretion conferred by s 501(2) of the Act to cancel her visa.
Background Facts
3. The evidence of Ms Pemberton and the documentary material before me was uncontested insofar as it related to the following background facts.
4. Ms Pemberton was born in New Zealand, and came to Australia with her parents when she was about three years of age. She lived in Queensland until she was about six, and then moved with her family to South Australia. After she and her family first came to Australia, they occasionally returned to New Zealand for comparatively short periods. She has not been to New Zealand since she was eight.
5. She went to two primary schools in Adelaide, and then went to two private secondary colleges. She did not fit in with other children at the first college, and attended the second college in Years 9 and 10. She found that college easier.
6. She had a difficult relationship with her parents and siblings. Her parents took her to see psychologists because they were worried about her behaviour, and she was eventually diagnosed as suffering from attention deficit hyperactivity disorder (ADHD), for which she was prescribed Ritalin and Dexamphetamine.
7. In 1995, when she was nearing the end of Year 10, she was found at school with cannabis, and expelled. This was soon after her sixteenth birthday. She ran away from home that night. She spent the first two nights living on the street, and after that lived with various friends who were much older. Her parents reported her missing, but she did not want anything more to do with them.
8. She had been interested in joining the Armed Forces but did not do so because she was not an Australian citizen. She received benefits from Centrelink. By early 1996 she became very depressed, and was prescribed medication for depression. She took to self-harming and tried to commit suicide, and on one occasion was admitted to The Queen Elizabeth Hospital and then transferred to the psychiatric unit of The Women’s and Children’s Hospital.
9. Illicit drugs were readily available from the people with whom she was associating, and she began abusing illicit drugs. Late in 1996 she met a number of young people and moved into a house at Queenstown. One of these people was a drug dealer, and the others were all drug users.
10. The offence of murder of which she was convicted occurred in December 1996, when she was 17. In addition to Ms Pemberton, two young men, aged 20 and 18 at the time of the offence, a male youth then aged 17 and a young woman then aged 18 were convicted of murder as a result of engaging in a joint enterprise. A sixth person, a girl aged 15 at the time of the offence, was convicted of assault occasioning actual bodily harm. Ms Pemberton had only known her co-offenders for about two weeks. The circumstances of the crime were horrific. The victim, a young woman aged 18, was assaulted over an alleged debt of some $70. The sentencing judge provided details of the terrible treatment that was meted out to the victim, and said that the sustained series of assaults warranted the description of torture. Whilst the Judge said that not all of the offenders took part in all of the activities he described, and were not all present throughout the entire time, all of the offenders were present for various periods at the house where the assaults were taking place and joined in the efforts to inflict the terrible experience on their victim. He said that a decision was then taken to murder the victim, and she was taken to a paddock where further savage and horrendous assaults occurred, resulting in her death.
11. Ms Pemberton was arrested later that month, and has been in custody ever since. She will be eligible for parole in December 2010.
12. She has used her time in custody to learn as much as she could. She successfully completed many courses which are summarised in exhibit R1 at pages 122 – 124. She has completed her matriculation. She has also been employed while in prison in the textiles unit, where she is engaged in manufacturing clothing.
Legislation
13. Subsection 501(2) provides as follows:
“(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
14. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
15. Section 499(1) of the Act empowers the Minister relevantly to give to a person having functions or powers under the Act written directions if the directions are about the performance of those functions or the exercise of those powers. Under s 499(2A) of the Act, the person must comply with a direction made under s 499(1).
16. The delegate of the Minister, when making the decision under review, applied the Ministerial Direction then in force, being Ministerial Direction No. 21. On the day after the delegate made his decision that Direction was revoked and replaced by a new Direction, namely Ministerial Direction No. 41. This new Direction applies from 15 June 2009. It differs from the revoked Direction in a number of important respects. The tabling statement referring to the new Direction includes the following paragraph:
“The Direction seeks to ensure that exercise of the discretionary power to refuse to grant a visa or to cancel a visa under section 501 of the Act is made in accordance with the current Government policy of dealing fairly and reasonably with people while also ensuring that robust border protection and protection of the Australian community measures are maintained.”
Consideration of Ministerial Direction No. 41
17. In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh; I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents’ Registration Board (2008) 235 CLR 286.
18. Paragraph 10(1) of Direction No. 41 provides for four primary considerations that must be considered in deciding whether to cancel a person’s visa. Three of these primary considerations are relevant in the present matter. By virtue of paragraph 11(1) of the Direction, certain other considerations, although not primary, may be relevant, and if so, must be considered in deciding whether to cancel a visa. Paragraph 11(2) provides in effect that it is appropriate that such considerations must be taken into account, but generally they should be given less weight than that given to primary considerations. I shall consider the three relevant primary considerations and the other considerations that are relevant to the present proceedings in turn.
19. As Direction No. 41 is a statutory instrument, it should be interpreted so as to give effect to the objectives of the Act and in accordance with ordinary principles of statutory interpretation. I must begin with a consideration of the ordinary meaning of the relevant words of the Direction read in their context and having regard to their apparent purpose and to the purpose of the Act.
20. The objectives of the Direction are set out in paragraph 5.1. This paragraph refers to the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and states that the Government is especially mindful to protect the safety of the community’s more vulnerable members.
21. The following paragraphs appear as part of paragraph 5.2, under the heading “General Guidance”.
“5.2(2)In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3)Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4)In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
First primary consideration – protection of the Australian community
22. This requires due consideration to be given to the Government’s objectives as set out in paragraph 5 of the Direction. Paragraph 10.1 provides in effect that the factors relevant to assessing the level of risk of harm to the community include two factors, namely: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated.
First factor re protection of Australian community – seriousness and nature of conduct (paragraph 10.1.1)
23. Paragraph 10.1.1(1) of the Direction provides relevantly that crimes involving violence are of special concern to the welfare and safety of the Australian community, and such crimes, particularly against vulnerable persons such as minors, are especially abhorrent to the whole community. The Direction provides examples of offences and conduct that are considered serious. The first such example is murder, and the examples also include grievous bodily harm, assault and aggravated assault (including abduction): paragraphs 10.1.1(2)(a) and (d). Clearly these paragraphs apply to the offence committed by Ms Pemberton and to her conduct at the time of the offence.
24. Paragraph 10.1.1(3) refers to other factors to which due regard must be given. As to these factors, the sentence imposed was very significant, although the non-parole period fixed for Ms Pemberton was shorter than the periods fixed for her co-offenders. She had no offences before her conviction for murder, and has no conviction for any offence during the period of more than 11 years since then; in these respects her antecedents are less serious than those of many non-citizens whose visas are cancelled on character grounds following a protracted history of repeat offending that has attracted significant custodial sentences.
25. Paragraph 10.1.1(4) provides for a number of further factors that are also to be considered. As to the first factor, I have referred above to some of the comments made by the sentencing judge. He also noted that Ms Pemberton had lived a nomadic life since leaving home, but had no previous convictions, had had a long history of behavioural problems and an unsettled life, and also had ADHD as a child. In addition he said that although she did not have a formal psychiatric disorder, she was subject to violent mood swings and had required medication from time to time, and had a history of drug abuse. He also recounted her role in the continued assaults on the victim, both in the house and later in the paddock to which the victim was taken and where she was murdered.
26. The sentencing judge referred briefly to Ms Pemberton’s early plea of guilty and to her offer to give evidence for the prosecution. On the hearing of her appeal against sentence, the Full Court said that these aspects warranted a differential between the non-parole period to be fixed for her and that applicable to her co-offenders, “sufficient to reward her for her early courageous plea and cooperation, and to encourage others to do likewise in similar circumstances.” (exhibit R1, page 81). The Court regarded these as significant matters. It pointed out that her guilty plea and offer to give evidence against the other offenders were made before she fully knew and was able to assess the strength of the Crown case against her, and at a time when two and possibly more defendants were intending to challenge the admissibility of certain confessions, so that her offer to give evidence would have been highly relevant to the prosecution. The Court added:
“In the way that things unfolded between their arrest and intended trial, what she did was a bold and significant move on her part, given her youth, and knowing that she was thereby committing herself to a long period of imprisonment with people, many of whom are less than sympathetic to colleagues who cooperate with the police.” (exhibit R1, page 81)
27. As to the next factor, there is psychiatric evidence before me from a consultant psychiatrist, Dr Raeside, who was called to give evidence in support of Ms Pemberton’s application. He had provided a report dated 13 August 1997 for the consideration of the sentencing judge. In that report, Dr Raeside referred to Ms Pemberton having described a number of features suggestive of a borderline personality disorder. However, in his evidence before me he explained that it would not have been appropriate to make a diagnosis of that disorder because she was not an adult when he examined her and he considers that she does not now have any such disorder. He had also reported in his 1997 report that Ms Pemberton had clearly had a drug and alcohol abuse disorder with probable drug dependency at times, and concluded that although she had no formal psychiatric illness it was likely that her personality factors “of low self-esteem, passivity, and a willingness to go along contributed to her involvement in this unfortunate matter.” (exhibit R1, page 151).
28. As to mitigating factors provided by Ms Pemberton, it is apparent to me, and I find, that she is deeply ashamed of what she did, realises the enormity of her crime, and has a profound sense of contrition. These matters are clear from her answers when she was cross-examined at some length as to all of the details of her participation in the prolonged series of assaults on the victim. She also said in a statutory declaration made in October 2008 that those involved in the assaults were all in a drug induced state, their “consciousness was numbed from reality and (their) values were already significantly lacking” (exhibit R1, pages 135 – 136). She also said that she in part blamed her cannabis use for her involvement in the victim’s death because she was “of not total sound mind and body at the time of the offence” (transcript 19.08.09, page 49, line 21). She also referred to being “pulled into” abusing the victim with her peer group, “really scared” and to thinking that “the whole thing would turn on anyone who was not part of the group” (exhibit R1, paragraphs 30 and 31, page 136). Other mitigating factors include her young age, the fact that she was the youngest of the group of people convicted of murder as a result of their joint actions, the absence of any other convictions, and her early plea of guilty and preparedness to give evidence against her co-offenders, being matters referred to when her sentence was fixed.
Second factor re protection of Australian community - risk that the conduct may be repeated (paragraph 10.1.2)
29. I have referred above to Ms Pemberton’s previous general conduct in the period up to the time of her incarceration. The first part of her time in custody was spent at the Magill Youth Centre, and she was transferred to the Adelaide Women’s Prison in June 1998. A conduct report provided by the Department of Correctional Services includes the following assessment:
“Ms. Pemberton has displayed intelligence and reasons well.
She is polite and courteous to staff and has excellent personal standards. She has never portrayed aggression to either staff or other prisoners.
She maintains a good work ethic in the Textiles Unit of PRIME.
Ms. Pemberton has several negative case notes recorded during her sentence, these would have been mainly personality issues and a need to retain an opinion about various issues.
She has had numerous urinalysis tests, several of which have been positive to THC and occasionally amphetamines.
When released she has in the past, voiced that she might like to be involved in the travel industry. This might be looked at in the last 12 months of her sentence (December 2009), she is eligible for parole on December 2010. (exhibit R1, page 61)
30. I have referred above to the courses that she has undertaken in prison. Since completing the courses referred to in exhibit R1, Ms Pemberton has undertaken peer support training, and has also attained certificates in clothing production and tourism operations (see exhibit A1).
31. In a report dated 31 July 2009 that Dr Raeside prepared in relation to the present proceedings (exhibit A3) he provided a detailed history of Ms Pemberton’s background and situation during her incarceration. He considered that she appeared to have had continued episodes of depression, but he could find no evidence of a significant psychiatric illness, and reported that in particular, her recent history did not support a diagnosis of a personality disorder. He noted that she had used her time in custody to further her education, and had been gainfully employed within the prison system, and from the information available to him, she had not been a cause of any concern for her behaviour, although she had tested positive for illicit drugs at times.
32. Dr Raeside concluded that Ms Pemberton would be at significant risk of a relapse of major depression if her application to this tribunal were rejected, due to a combination of impending deportation and extra restrictions in custody that would not otherwise apply. He reported that she would also need ongoing psychiatric review in New Zealand as well as “considerable social supports” after her extended period in custody since her teens. He also said that Ms Pemberton was concerned about the impact on her family of the prospect of deportation, but he particularly noted “her positive statements about her views on her original offence and her views of the future in which she wishes to rebuild her life and relationship with her family” (exhibit A3, page 7). He also said that ongoing family support had been a positive factor in Ms Pemberton’s rehabilitation. He considered that she was more intelligent than the average woman prisoner, and appeared to have matured significantly, as one would expect, but obviously with the length of time in custody she had also developed a number of features of institutionalisation. He continued:
“It would be very important that she receive re-socialisation efforts before being released into the community (whether in Australia or New Zealand) in order to assist in this transition and reduce the risk of negative behaviours in the community, such as resuming illicit drug use. Unfortunately, a decision to deport her would deprive her of such re-socialisation efforts and therefore she would potentially be at increased risk in the community upon her release in New Zealand, although this need not be the case should she be released in Australia.” (exhibit A3, pages 7 – 8)
33. Earlier in his report, Dr Raeside had referred to a re-socialisation program of 18 months at the end of Ms Pemberton’s sentence, whereby she would be assisted to re-integrate back into society, and would have day leave to visit her family. He regarded these measures as very important. However, they had been put on hold due to the cancellation of her visa.
34. Dr Raeside addressed the risk of recidivism in his recent report. He made the general observation that those who commit murder are at the low end of risk of recidivism compared to other offending. He said:
“Given Ms Pemberton’s case I think that she is at very low risk of reoffending, with the exception that this would occur as long as her substance abuse is well controlled. Even then, should she resume substance abuse in the community I think her chances of committing a further offence of murder is very low, but she might be at risk of less serious offences. As noted, this can be addressed through appropriate re-socialisation, further drug and alcohol programs to focus on relapse prevention techniques upon the stress of being released into the community, and other general supports. Overall, she would be at much less risk of reoffending upon being released into the Australian community than she would in the New Zealand community.” (exhibit A3, page 8)
35. In his evidence, Dr Raeside referred to Ms Pemberton’s young age at the time of offending, and the circumstances in which it occurred, which entailed peer group pressure and dynamics between the group, and the use of drugs at the time. He said that she had expressed great remorse and accepted responsibility for her actions, and her experience would tend to make her avoid similar situations in the future.
36. The fact that Ms Pemberton had continued to use drugs in prison notwithstanding that she had completed drug rehabilitation courses was put in context by Dr Raeside. He said that the courses had been provided in the prison community, where drugs were readily available. He also said that the programs available in prison were somewhat limited compared with what was available in the general community, and he regarded it as significant that she had not used illicit drugs for the last couple of years. At the same time, he acknowledged that she would be at some risk in the community on her release because of ongoing stresses that she would encounter, but thought that she would be more at risk if she were to go to New Zealand, because of the lack of support there. He thought that people addicted to drugs are at risk of committing less serious offences in order to procure illicit drugs, such as stealing or dishonesty and possibly engaging in violent conduct, although he agreed that Ms Pemberton was not a violent person.
37. Ms Pemberton admitted her use of illicit drugs in the prison system. It is apparent from her evidence that she was depressed at times, felt tormented as a result of realising the enormity of her offence, and had been beaten and ostracised by other prisoners because they had been told that she was a “grass”. She said that she obtained some relief from these difficulties by using drugs, and that this tended to happen during winter when she felt more depressed, and in December, at about the anniversary of her offending. This evidence is consistent with the records of the results of urine analyses, which on some occasions have been positive.
38. I referred above to Ms Pemberton’s evidence as to her profound remorse and sense of contrition for her offending conduct. She also gave evidence of having been assisted by the various programs she had participated in during her time in custody. In particular, she referred to having been assisted by a more recent program which she described as “offence mapping”, which she said enabled her to understand her behaviour and the behaviour of her co-offenders, and the causes of that behaviour. She also referred to the amount of time that she had served in prison and her realisation that drugs in effect had been a major component of the crime, in conjunction with the influence of the other people who at the time were her peers. I am satisfied that she realises the destructive effect that using drugs has had on her life, her family, the victim and the victim’s family, and that she realises the importance of living a drug-free life on her release.
39. Ms Pemberton also referred to having been assisted by counselling she had receiver from Offenders Aid & Rehabilitation Services of S.A. Inc, a voluntary service that assists prisoners. She also referred to a mentor program within prison, and said that she had been selected to be a mentor for that program. She said that she is a different person now, and as she has matured, she has learned to deal with confronting issues strategically and sensibly, and is able to be assertive without aggression. She also said that as a result of a Parole Board assessment, her security ranking in the prison had been assessed as low, due to her behaviour and co-operation with prisoner programs, but more recently, because of the cancellation of her visa, her ranking was increased to medium.
40. It is also relevant in assessing the risk of recidivism if she remained in Australia, that Ms Pemberton would remain on parole for life, so that she would have the support of the parole system and would be subject to the directions of a parole officer. Such directions can include requirements to undergo urine testing for illicit drugs, and to obey directions about employment or place of residence. The parole system will also have a deterrent effect, in that a breach of her parole would mean that she would be returned to custody. In addition, notwithstanding my decision to set aside the delegate’s decision, Ms Pemberton could face deportation from Australia in the future if she were to commit further offences, and so be unable to satisfy the character test. This prospect would also constitute a very powerful incentive for her to avoid offending again.
41. A letter dated 5 August 2009 from the General Manager, Adelaide Women’s Prison (exhibit A2) confirms that Ms Pemberton has completed Year 11 and Year 12 equivalents by attending education programs throughout her incarceration, and that she is currently undertaking Certificate III in tourism and receives positive comments from education staff. The letter also refers to her having received extensive psychological intervention during her incarceration and to her having completed a number of offender development programs and a training course on peer support, which included TAFE accredited modules on communication. The letter confirms Ms Pemberton’s employment in the prison industries textiles factory, that she receives positive work reports, and receives regular contact from her allocated case officer and the case management co-ordinator. The letter also states:
“Ms Pemberton interacts well with prison staff at the Adelaide Women’s Prison and is generally considered to be a polite and cooperative prisoner.”
42. Ms Pemberton’s parents were also called. They confirmed that her behaviour as a child led to their seeking psychiatric and psychological assistance, and ultimately to a diagnosis of ADHD. They also confirmed that although they had separated soon after Ms Pemberton had been incarcerated, they both shared a love and concern for their daughter, and they referred to seeing in her much greater maturity than previously, and having established strong parental relationships with her during the later part of her time in custody. They are aware of the need to assist her to be integrated into society after her long period of isolation in custody, and are each willing to have their daughter live with them for as long as she wishes to do so.
43. On the basis of the above evidence, I find that if Ms Pemberton’s visa is not cancelled and she returns to the Australian community on her release, the risk of her being involved in any future offence for any crime involving violence is very low. She has made significant progress in her endeavours to achieve rehabilitation, and I accept that she is determined to lead a meaningful and worthwhile life. Further, I find that there are good prospects of her overcoming her drug problem, and that in those circumstances, the risks of any kind of re-offending are also low.
44. In summary, therefore, of the two factors relevant to assessing the level of risk of harm to the community of Ms Pemberton’s continued stay in Australia:
(a)her offending conduct was most serious and abhorrent, but she has no other convictions, and there are some limited mitigating factors; and
(b)there is a very low risk that the offending conduct may be repeated.
Furthermore, applying the guidance provided by paragraph 5(5) of Direction No. 41, this is a matter where it would be more appropriate for the Australian community to accept more risk because Ms Pemberton has spent her formative years, and a major portion of her life, in Australia.
Second primary consideration – whether the applicant was a minor when she began living in Australia (paragraph 10.2)
45. This consideration, which was not included in the revoked Direction No. 21, provides relevantly as follows:
“10.2(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.”
46. On the face of it, Ms Pemberton satisfies this factor; she was a minor when she began living in Australia, and she spent her formative years in Australia.
47. Counsel for the Minister, Ms Chapman, contended that this factor was not satisfied, because Ms Pemberton’s early arrival and development in Australia had not in fact “increase(d) the likelihood of establishment of greater ties and linkages to the Australian community”. Counsel pointed out that Ms Pemberton on her own admission had not fitted in at school, and had difficulty in establishing satisfying relationships with other people, and submitted that her only ties and linkages to the Australian community were with fellow drug users who supported their dependency by petty crime. Ms Chapman further contended that Ms Pemberton did not have ties or linkages to the Australian community, because she had been incarcerated since she was 17, and her time in prison could not be regarded as a tie or linkage to the Australian community.
48. I do not accept this construction of paragraph 10.2(1). In my opinion, the concluding words of paragraph 10.2(1), commencing “thereby increasing the likelihood …”, should be construed as an assumption underlying the reasons for the existence of the factual aspects of this consideration, namely the person being a minor and having spent their formative years in Australia. I consider that this construction is consistent with the general guidance provisions contained in paragraphs 5.2(3) and (4). I was not provided with any material that formally explains the circumstances that gave rise to the repeal of Direction No. 21 and its replacement by Direction No. 41. I am, however, mindful of concerns expressed in earlier cases made under the revoked Direction No. 21 that involved non-citizens who had come to Australia as very young children, and had lived most of their lives in Australia before having their visas cancelled under s 501 on character grounds, with the result that they were deported to other countries and permanently banished from Australia, even though they had no ties at all to those countries. I refer, for example, to Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 at [1], where Moore and Gyles JJ referred to the non-citizen as being “only an ‘alien’ by the barest of threads”, and commented that the prospect of his deportation to his country of birth and permanent banishment from Australia caused them a “sense of disquiet”, similar to that expressed by other judges in earlier cases to which their Honours referred. They added that this suggested that “administration of this aspect of the Act may have lost its way.”
49. Further, it does not follow that Ms Pemberton does not have ties or linkages to the Australian community because she has been in custody for so long. During that period she has had contact not only with other inmates, but also with those who have visited her, prison officers, persons providing the education courses she has attended, and psychologists and psychiatrists involved in her treatment. As counsel for Ms Pemberton said, the Australian community includes a range of people, good and bad, young and old, those who are mentally ill and those who are not, and those who are drugs users and those who are not. In Ms Pemberton’s case, except for when she was an infant, her only experience of life has been in Australia. She went to school here, and before running away from home worked at a Pizza Hut (although she gave this work up after a short time because she was not getting enough shifts).
50. Whilst on its correct construction, this second primary consideration applies to a non-citizen notwithstanding that he or she has unsatisfactory ties and linkages to the Australian community, I also consider that the fact that those ties and linkages are unsatisfactory might affect the weight that a decision-maker might otherwise give to this consideration. I will evaluate this consideration on that basis in the present matter.
51. I also consider that the comparison entailed in the concluding words of paragraph 10.2(1) is between the Australian community and the community of the other country to which the person concerned would be deported if his or her visa is cancelled. I do not agree with Ms Chapman’s submission that the comparison is between a person with positive or commendable ties and linkages to the Australian community, and a person in the position of the present applicant, who had difficulties as a young person, and then formed ties or linkages to young offenders who were involved in petty crime through dependency on illicit drugs.
52. There would be no language difficulty for Ms Pemberton in New Zealand, but she has no ties or linkages to the New Zealand community. She has an uncle there with whom she had a good relationship when he was living in Adelaide, but his present whereabouts are unknown, and a breakdown of relations between her uncle and her mother makes the likelihood of her uncle providing support to her, even if he could be found, very low. She has lost contact with her cousins in New Zealand. Her grandmother in New Zealand suffers from dementia and resides in a nursing home. If she were deported she would be deprived of the support of her parents, and also the support of the parole system that would otherwise be available to her in South Australia.
53. I consider that this second primary consideration should be assessed in Ms Pemberton’s favour.
Third primary consideration – the length of time that a person has been ordinarily resident (paragraph 10.3)
54. Paragraph 10.3(1) provides as follows:
“10.3(1)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 activity or activity that bears negatively on their character.
Note:For example, a period of more than 10 years of 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.”
55. This primary consideration is also a new consideration which was not included in Direction No. 21.
56. Ms Chapman contended on behalf of the respondent that Ms Pemberton had engaged in the criminal conduct that resulted in her conviction when she was only 17 years of age, and prior to that, had not formed significant ties to the Australian community, in that once again she had only had unsatisfactory relationships at school, and had then associated with young people who were involved in drug taking, had not engaged in any settled employment, and had lived a somewhat nomadic existence.
57. I do not accept that this consideration would not apply if the ties to the Australian community prior to the relevant criminal conduct were of a negative character. Once again, I regard the opening words of paragraph 10.3(1) as stating the assumption or policy basis of the third primary consideration, and I regard that assumption as comparing the ties to the Australian community with the ties to the country to which the non-citizen would be deported if his or her visa is cancelled. Further, if the respondent’s contention is correct, it would follow that in many cases where non-citizens committed crimes or became involved with unsatisfactory members of the community when they were juveniles, they would be unable to rely upon this third primary consideration. I do not think that Direction No. 41 should be interpreted so as to produce that result. Nevertheless if there are no significant ties to the Australian community before criminal or negative activity, or if such ties are unsatisfactory as in the present matter, then once again those matters may affect the weight to be given to this third primary consideration.
58. Ms Pemberton had been resident in Australia for about 14 years before committing the offence of which she was convicted. Even though much of that period occurred during her childhood, I think that this primary consideration favours Ms Pemberton.
Other Considerations – Paragraph 11
59. Paragraph 11 of Direction No. 41 contains a non-exhaustive list of other considerations that are not the primary considerations but, under paragraph 11(1), may be relevant, and if so, must be considered. Paragraph 11(2) provides:
“(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.”
60. Of these other considerations, the following matters are relevant.
(a)Family and other relationships (paragraph 11(3)(a)) : Ms Pemberton has family ties to the Australian community. Her parents both live in Adelaide. She has re-established a relationship with her parents which is now of a mature nature, and she has the opportunity to live with each of her parents and to be assisted by them to integrate into the community. She has a younger brother with whom she has had little contact since her time in custody, but she has expressed a desire to establish a relationship with him. She also has a younger sister with two young children, who now live in Queensland, and it is likely that Ms Pemberton will have a greater prospect of establishing a relationship with her sister and nieces if she remains in Australia. Ms Pemberton’s mother gave evidence that her financial circumstances are such that she would find it very difficult to visit her daughter in New Zealand, and she would not regard it as feasible to move to New Zealand herself, because of difficulties of obtaining employment at her age and with her restricted nursing qualifications. Ms Pemberton’s father thought that if she were deported, he would have to visit his two daughters alternately (in New Zealand and Queensland), and would see Ms Pemberton probably only for a period of one week at a time every two years. I find that the cancellation of Ms Pemberton’s visa would entail significant disruption to her immediate family.
(b)The applicant’s health : (paragraph 11(3)(c)) : Dr Raeside did not consider that Ms Pemberton is suffering from any diagnosable psychiatric condition. Nevertheless, he considered that she was at risk of abusing illicit drugs in periods of stress, but that she would derive greater support within the Australian community, both from re-socialisation measures before she is released from prison, and after her release, due to the support that would be available to her in Australia. I note that in Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555, Deputy President McDonald took circumstances such as these into account in favour of the non-citizen. I agree with respect with his assessment.
(c)Links to country of deportation (paragraph 11(3)(d)) : Ms Pemberton has no links to New Zealand, and the fact that she has no significant familial ties or support in New Zealand is to be considered in her favour (paragraph 11(3)(d)).
(d)Hardship to applicant and her immediate family (paragraph 11(3)(e)) : As mentioned above, Ms Pemberton’s mother may not be able to travel to New Zealand to visit Ms Pemberton, and her father’s ability to do so will be very limited. She herself will be unable to obtain support from any family members in New Zealand. These matters would cause hardship to her and to her parents.
(e)Education considerations (paragraph 11(3)(f)) : As also mentioned above, Ms Pemberton has made efforts to improve her education and therefore increase her capacity to positively contribute to the Australian community through employment or other activities, and this is to be considered in her favour (paragraph 10(3)(f)(ii)).
61. In summary, those of the factors under the heading “Other Considerations” that are relevant are in favour of Ms Pemberton being able to remain in Australia.
Summary and Conclusion
62. Having regard to the circumstances to which I have referred above, I do not think that the Australian community would be subject to unacceptable risks of harm if Ms Pemberton remains in the Australian community. Further, I think that the second and third primary considerations, and those factors included in the other secondary considerations that are relevant to Ms Pemberton, are all in her favour, for the reasons to which I have referred above. I consider that she should be given the opportunity to rebuild her life in Australia, with the support of her family and the parole and other community facilities available in this country. There is force in the contention by Ms O’Connor, who very helpfully appeared pro bono for Ms Pemberton, that the analysis of Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 at [30] – [35] is applicable to the present matter, and that to deport Ms Pemberton would, in all the circumstances, be punitive in nature.
Decision
63. The tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel Ms Pemberton’s visa not be exercised.
I certify that the 63 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 19 - 20 and 25 August 2009
Date of Decision 10 September 2009
Counsel for the Applicant Ms C O’Connor
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Ms L Chapman
Solicitor for the Respondent Australian Government Solicitor
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