Pitman and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 337

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/157

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BURN PITMAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date15 April 2005

PlaceSydney

Decision The decision under review is affirmed.

……………………………..
   Mr J Block
   Deputy President

CATCHWORDS

MIGRATION ACT – visa cancellation – applicant held Class 444 Special Category Visa – applicant fails character test – numerous convictions – has been imprisoned for more than 12 months – consideration of discretion contained in Direction 21 - warning received from DIMIA – disregard of that warning – substantial risk of recidivism - no evidence of hardship to relevant persons if visa cancelled – decision affirmed

LEGISLATION

Migration Act 1958 ss. 500(6J), 500(6H), 501

REASONS FOR DECISION

15 April 2005 Mr J Block, Deputy President       

PART A – INTRODUCTION, GENERAL AND OVERVIEW

1. The decision under review is that of a delegate of the respondent, made on 3 February 2005, cancelling, pursuant to section 501 of the Migration Act 1958 (“the Act”), a class 444 Special Category Visa held by the applicant.

2. The applicant appeared in person; the respondent was represented by Mr Timothy Webb of Clayton Utz Solicitors. The tribunal had before it the G documents lodged pursuant to section 501G of the Act.

3.      The respondent’s statement of facts and contentions dated 1 April 2005 contains the usual helpful chronology of relevant events. That chronology, set out under the heading of “Facts”, reads as follows:

FACTS

29/07/1979	The applicant was born in New Zealand.
22/02/1986	The applicant first entered Australia.
13/12/1988	The applicant departed Australia.
04/02/1989	The applicant entered Australia.
12/01/1994	The applicant departed Australia.
28/01/1994	The applicant entered Australia.
11/07/1994	The applicant was convicted of "break and enter with intent" (charge date 07/05/1994) and sentenced to 12 months probation.
26/12/1995	The applicant departed Australia.
26/03/1996	The applicant entered Australia.
10/12/1996	The applicant was convicted of "possession of a prohibited drug" (charge date 14/11/1996) and fined $150.
17/04/1997	The applicant was convicted of "attempt steal motor vehicle" and "possession housebreaking implements capable of entering conveyance" (charge date 04/12/1996) and s80AA warrant to issue.
26/11/1997	The applicant was convicted of "steal motor car / motor vehicle", "possess implements to enter/drive conveyance" and "goods in custody of other reasonably suspected stolen" (charge date 07/11/1997) and sentenced to 2 years supervised NSW probationary service and fined $700.
07/01/1998	The applicant was convicted of "larceny value <=$2,000" (charge date 11/12/1997) and fined $200.
04/02/1998	The applicant was convicted of "possession carbreaking implement" and "attempt steal conveyance" (charge date 07/11/1997) and s80AA warrant to issue.
24/06/1998	The applicant was convicted of "possession implement capable of entering conveyance" and "attempt steal motor vehicle" (charge date 25/05/1998) and sentenced to 2 concurrent 6 week terms of imprisonment.
06/11/1998	The applicant was convicted of "robbery while armed with dangerous weapon" and "robbery while armed with dangerous weapon (4 counts)" (charge date 07/01/1998) and sentenced to a total period of 4 years of penal servitude with a minimum term of 18 months with an additional term of 2 years and 6 months.
06/11/1998	The applicant was convicted of "robbery" (charge date 02/09/1998) and conviction taken into account on other file.
17/03/1999	The Department of Immigration And Multicultural And Indigenous Affairs ("DIMIA") wrote to the applicant informing him that he may be liable for visa cancellation pursuant to section 501(2) of the Migration Act 1958.
20/12/1999	DIMIA wrote to the applicant notifying him that the respondent or delegate would be considering whether there were grounds to cancel his visa under section 501(2) of the Migration Act 1958.
20/12/1999	The applicant attended an interview with a DIMIA officer to afford the applicant an opportunity to make known any issues that he wished to be taken into account by the respondent or delegate when considering the applicant's case.
08/02/2000	The respondent's delegate decided not to cancel the applicant's visa but decided that he be issued with a warning.  This warning was communicated to the applicant by letter dated 15/02/2000.
09/08/2000	The applicant was convicted of "drive vehicle recklessly/furiously or speed/manner dangerous", "possess implements to enter/drive conveyance", "drive conveyance taken without consent of owner" and "never licensed person drive vehicle on road" (charge date 10/06/2000) and sentenced to 4 concurrent 3 month terms of imprisonment and disqualification of licence for 3 years.
09/08/2000	The applicant was convicted of "take and drive conveyance without consent of owner", "drive conveyance taken without consent of owner", "never licensed person drive vehicle on road", "drive vehicle recklessly/furiously or speed/manner dangerous" and "revocation of parole" (charge date 19/07/2000) and sentenced to 9 months imprisonment, 4 concurrent 3 month terms of imprisonment, disqualification of licence for 5 years and returned to former custody.
07/08/2001	The applicant was convicted of "driver/rider state false name or address" and "drive while disqualified while holding a licence" (charge date 07/08/2001) and fined $100 and sentenced to imprisonment for 3 months.
07/11/2001	The applicant was convicted of "break and enter building commit felony (steal) value >$2,000 & <=$5,000" (charge date 11/10/2001) and sentenced to imprisonment for 6 months.
03/03/2003	The applicant was convicted of "be carried in conveyance taken without consent of owner" and "trespass on prohibited Commonwealth land" (charge date 11/11/2002) and fined $100 and sentenced to imprisonment for 6 months.
03/03/2003	The applicant was convicted of "larceny value <=$2,000" (charge date 07/01/2003) and sentenced to imprisonment for 6 months.
14/04/2003	DIMIA wrote to the applicant notifying him that the respondent would be considering whether there were grounds to cancel his visa under section 501(2) of the Migration Act 1958.
20/04/2003 (received 02/05/2003)	The applicant sent a questionnaire to DIMIA to be taken into account by the respondent or delegate when they considered whether there were grounds to cancel his visa under section 501(2) of the Migration Act 1958.
03/12/2003	DIMIA wrote to the applicant enclosing a copy of his criminal history and inviting the applicant to provide any new or further information to be taken into account by the respondent or delegate.
15/12/2003	The applicant was convicted of "drive while disqualified from holding a licence" and "drive conveyance taken without consent of owner" (charge date 06/11/2003) and sentenced to imprisonment for 16 months with a non-parole period of 12 months and imprisonment for 12 months (to be served concurrently). [appealed]
31/03/2004	The applicant was convicted of "drive while disqualified from holding a licence" and "goods in personal custody suspected being stolen (not motor vehicle) (4 counts)" (charge date 25/01/2004) and sentenced to imprisonment for 20 months with a non-parole period of 15 months and imprisonment for 6 months (to be served concurrently). [appealed]
14/05/2004	The Campbelltown District Court of Appeal confirmed the convictions on 15/12/2003 and in lieu sentenced the applicant to imprisonment for 9 months and disqualification of licence for 2 years.
14/05/2004	The Campbelltown District Court of Appeal confirmed the convictions on 31/03/2004 and in lieu sentenced the applicant to imprisonment for 17 months with a non-parole period of 12 months.
27/07/2004	DIMIA wrote to the applicant again informing him that the respondent or delegate would be considering whether there were grounds to cancel his visa under section 501(2) of the Migration Act 1958.
21/12/2004	DIMIA wrote to the applicant inviting him to provide any new or further information to be taken into account by the respondent or delegate.
01/02/2005	The respondent's delegate cancelled the applicant's visa pursuant to subsection 501(2) of the Migration Act 1958. This decision was communicated to the applicant by letter dated 03/02/2005.
05/02/2005	The applicant was placed into immigration detention at Villawood Immigration Detention Centre.

Mr Webb drew attention to the fact that the chronology includes one minor error in that two convictions are referred to as having taken place on 24 June 1998 when the correct date is 24 May 1998.

4.      It is convenient to gather in this Part A extracts from a number of documents which are included in the (extensive) G documents and which were put to the applicant or otherwise referred to during the course of the hearing.

5.      A transcript of the sentencing hearing before his Honour Judge O’Reilly (dated 6 November 1998) is G5 (G5 page 41 to page 46). The applicant was convicted of five counts of armed robbery. A part of his Honour’s sentencing remarks, and contained in G5 page 41 to page 43 but excluding the last paragraph of G5 page 43, read as follows:

HIS HONOUR: The prisoner Berne William Pitman [the applicant] has pleaded guilty to an indictment charging five counts under section 97(1) of the Crimes Act of armed robbery and I convict him in respect of each of those matters.

The circumstances briefly were that he, then aged eighteen, and his older brother, then aged twenty-three, and possibly somebody else, had apparently received information that there was likely to be a quantity of cannabis at an address at Ashcroft.

I accept the situation that the prisoner was the junior member so far as the actual home invasion which occurred between 10.30 and 11pm on 15 October 1997. I also accept the position that the prisoner was not aware that his older brother, O’Malley, was carrying a gun until a few seconds before the actual entry into the premises.

The prisoner was wearing a balaclava and was carrying a knife which was described by one of the witnesses as a small butter knife.

The prisoner and his co-offender knocked on the front door of the premises, which was opened by the victim, Franck Xuereb. He and others were simply watching television in the premises at the time.

The co-offender pointed the gun at him and forced his way in. Inside the premises were the victims Michelle Xuereb, aged twenty-two, sister of Frank, together with her daughter Zoe, aged two, and one Graeme Middleton. They were made to lie on the floor and hand over money and valuables. The prisoner produced his knife, or held his knife out during these proceedings.

The man O’Malley entered the bedroom of Graeme Middleton and told the occupants to lie on the floor. Frank Xuereb’s girlfriend appeared and was also told to lie on the floor while the offenders then selected what they wished to steal.

The prisoner placed property into a sports bag, apparently owned by Graeme Middleton, and took a machete. It is not suggested that he threatened anyone with such an implement. Various stolen property was then placed in bags. A search was made of the manhole in the roof, presumably to try to locate cannabis. There was a very small quantity of cannabis located in the premises and one of the occupants was charged in that respect.

Adam Witmore, another victim, knocked on the door. He was disturbed to see his defacto, Michelle Xuereb and daughter, Zoe, crying and upset. At that time the offenders ran from the premises. They were chased by the Witmores. During that O’Malley apparently fired the gun, presumably to deter pursuit. It is not suggested that the prisoner played any part in that activity.

Then they endeavoured to make their escape and it seems indeed there was a third person there because O’Malley entered the car through the left-hand door. It is a Holden utility vehicle. The vehicle accelerated at a time when the prisoner was trying to get on the back and he fell off. A fight then occurred between himself and the Witmores.

I am invited to accept the position that he was “given a hiding” by the Witmores. It may be – and I think it appears in the statements – that he certainly was punched to the ground. As to the extent of any injury inflicted on him I am unable to say, but one of the Witmores, in his statement, suggests that he made a conscious decision to let the prisoner go, which might suggest that he was concerned about excessive force having been used on him.

When spoken to by the police on 7 January 1998 he admitted his involvement. He nominated the driver of the utility vehicle, only known to him as Michael, as being the chief planner, and consistent with what has been put to me on the sentence proceeding, he denied any prior knowledge of the fact that O’Malley was to use a pistol.

Well that shortly states the facts. It was a very serious home invasion. People were put at risk, put in terror. The Crown has referred me to a case of Pham 55 ACR 128. I have dealt with home invasion cases before, I have to say, and I have, in appropriate cases, imposed quite heavy sentences.

As to the subjective situation, the prisoner is only aged nineteen now. He was born in New Zealand but he has lived in this country since the age of six. He unfortunately commenced a cannabis habit quite early, then moved on to heroin and indeed, immediately before these offences he said that he was beginning to crave heroin.

6.      It will be noted that the sentencing remarks make reference to the applicant’s drug problems. It will be noted also that at that time (1998) the applicant’s criminal record was, so the judge found, moderate. However, the chronology makes it clear that the applicant was to be convicted of numerous offences subsequently. Those offences include numerous offences loosely referred to as “driving offences”. They include also a number of offences falling generally within the category of theft, larceny and receiving stolen goods. They also include offences related to drugs. By any standards, the applicant’s criminal record regarded as a whole is extensive and in consequence of those convictions, the applicant has spent a considerable part of the last 7 years in gaol.

7.      As the chronology indicates, the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) notified the applicant by letter dated 20 December 1999 (G11 page 55) of grounds which might lead to the cancellation of his visa. Following that letter, the applicant was interviewed by DIMIA; similarly his mother Emily O’Malley and his sister Angela O’Malley were interviewed by DIMIA. In addition, his then girlfriend Tyla Kenzie wrote a lengthy letter of support of the applicant to DIMIA.

8.      In respect of the applicant’s own interview (G14 page 63 to page 69), which took place on 20 December 1999, I include the content of G14 pages 66 and 67 as follows:

What name did you use on entry?: Burn William Pitman

Have you travelled since that arrival? (details & reasons for travel):

Departed several times to visit family in NZ.

Do you have a travel document (where)?: yes – it may be with a rehabilitation centre – unsure where it is.

EDUCATION HISTORY (include schools, college, UNI etc, and results attained)

-up to year 9 at Busby High School, Bonnyrigg

-expelled when he was 16-17

-looked for work after this

EMPLOYMENT HISTORY (type of employment and periods)

-various – concreting, landscaping, painting, scaffolding

-prior to gaol, unemployed for a total of [approximately] 12 months during which he received unemployment benefits

Have you ever received unemployment benefits? (include periods)

See above

Do you have any assets in Australia? (what):

No

CRIMINAL HISTORY (explain the offence on which you are basing visa cancellation – it may not be current offence)

Do you agree that you have a substantial criminal history (explain and show the meaning of this pursuant to s501(7))?:

Yes/no

If yes, do you therefore agree you cannot pass the character test?:

Yes/No          (did not really understand the question)

What is your current offence and the circumstances?:

-armed robbery, was with his brother

-used a knife

-he was on drugs, a heavy user of heroin

-[illegible]

What other offences do you have, and the reasons for them?:

-attempt to steal

-other minor offences for which he received fines

-this is the first offence for which he received a sentence

Do you have any outstanding charges/legal matters?:

No

If you are released (ie your visa is not cancelled), what are your future plans for employment, accommodation?:

-his girlfriend’s uncle has a scaffolding business and has said he can work there upon his release

-will continue to live with his family

Do you believe you have been rehabilitated. If yes why?

-yes: took a drug and alcohol course and learnt to say no to drugs

-he is now off drugs

-chose to rehabilitate himself because it was destroying him and his family and he didn’t want that to happen.

9.      The applicant’s then girlfriend Tyla Kenzie wrote, on 7 January 2000, at some length to DIMIA. Her letter appears at G15 page 70 to page 72. I include a part of that letter as follows:

… Since I met Berne I have found him to be a very quiet and reserved person. Since forming a relationship on a more personal level he has opened up and discussed with me his future and what he is prepared to do to keep himself out of trouble. He is a very family orientated person and has grown a lot closer to his mother and other family members since being put in jail. I also understand that he has an Australian Brother and Sister and would be deeply affected if separated from either… I am prepared to give him (the applicant) full support and see that he keeps out of trouble which I know he will as he has learnt his lesson and is prepared to make a better life for himself…

10.     The applicant’s mother Emily O’Malley was interviewed on 10 January 2000; the interview report appears at G16 page 73 to page 76. I include the questions and answers in respect of questions 8, 9 and 10 as follows:

8. Views on subject’s conviction:

- fair and has done him the world of good

… [illegible]

- she is surprised about his attitude – he is talking about getting more education

… [illegible]

9. Views on prospects for rehabilitation:

- very good. Thinks he’ll stay off drugs and stay away from crime

- thinks he has a good future with his girlfriend as they talk about the future.

10. Comments on offender’s personal problems in coping with community standards:

- thinks he’ll fit in quite well upon release

- says he has big hopes now he is off heroin

11.     The interview report with the applicant’s sister, Angela O’Malley, appears at G17 page 77 to page 80. Here also I include the questions and answers in respect of questions 8, 9 and 10 as follows:

8. Views on subject’s conviction:

- done for a reason

… [illegible]

- he’s lucky he didn’t get longer for that offence…

9. Views on prospects for rehabilitation:

- he has a very good chance

- he had a good time to think how much it affected all those around him

- he knows that if he returns to his old ways he will lose his family support and this is important to him 

- she says he has strong views on anti drug use

- he won’t go back to his old ways

10. Comments on offender’s personal problems in coping with community standards:

- he will fit into the community quite well

12.     DIMIA decided to give the applicant another chance and thus sent him a warning notice. That letter dated 15 February 2000 appears at G21 page 100 and reads as follows:

Dear Mr Pitman

Your conviction at Liverpool District Court on 6 November 1998 for ROBBERY WHILST ARMED WITH A DANGEROUS WEAPON (5 counts) rendered you liable for visa cancellation under section 501 of the Migration Act 1958.

The Minister's Delegate has decided on this occasion not to cancel your visa on the basis of this conviction. Nevertheless you are strongly warned that any further conviction will lead to the question of your visa cancellation being reconsidered.  Disregard of this warning will weigh heavily against you in the event of your case being re-opened.

I have enclosed a copy of Australia’s Visa Cancellation Policy together with a copy of section 501 of the Migration Act 1958. I suggest that, in your best interests, you read this documentation carefully.

…

It will be noted that the letter in question makes it clear that future bad conduct would weigh against the applicant.

13.     On the 20 April 2003 the applicant completed a questionnaire and setting out reasons why he should not be deported. That questionnaire which was received by DIMIA on 2 May 2003 appears at G26 page 112 to page 121. At G26 page 112 Mr Pitman noted that he is engaged to be married to Ms Aine Morris, with whom he has been in a relationship with for two years. The applicant answered in the affirmative to the question of whether he believes he has been rehabilitated, explaining (at G26 page 120):

Both my partner and I over the recent months have realised the depth of commitment we have for each other.

I believe that I now have the best opportunity to maintain a functional life with the ongoing support of my partner and family.

I have a willingness to attend N/A [Narcotics Anonymous] on a regular basis upon my release to facilitate and maintain a drug free environment and my relationship.

At G26 page 120 the applicant was asked to comment on the possibility of his visa being cancelled and being removed from Australia:

What are your views? Why should your visa NOT be cancelled?

I feel saddened as I now realise the negative impact and consequence my behaviours have had not only affecting myself but those who care about me.

I arrived in Australia as an infant and attended my schooling here.

My only functional support systems and immediate family reside in Australia.

…

If your visa were cancelled, will this affect anyone else, and what will be the effect?

If my visa were cancelled it would have a negative impact on my future relationships with family and my fiancé, she has children from her previous relationship and as a consequence would be unable to return to New Zealand to live with me.

This would seriously have detrimental effect on her.”

14. At a directions hearing held on 1 March 2005 the applicant’s attention was drawn to the provisions of section 500(6H) of the Act and pursuant to which statements are required at least two business days prior to the hearing in respect of any witnesses on whose evidence he intended to rely. At that directions hearing the applicant said that he was seeking to obtain legal representation. The applicant did not obtain legal representation and appeared at the hearing unrepresented. The applicant was the only person to give evidence at the hearing. He did not call any of his close relatives. He also did not call his current girlfriend Aine Morris described by him as a consulting psychologist, aged something over forty and who has been his girlfriend for the past four years (it may be noted that she was referred to during the hearing as his “girlfriend” whereas in the questionnaire only she was referred to as his fiancé).

15.     Before giving evidence, the applicant was asked about the composition of his family. He said that his mother, sister, little brother and little sister (the latter two both Australian citizens) are resident in Australia. He said that his father is resident in New Zealand and that he last met his father in New Zealand when he was fifteen.

PART B – THE EVIDENCE OF THE APPLICANT

Evidence in Chief

16.     The applicant was born in New Zealand in 1979. His full name is Burn William Pitman; references in some of the documents to his first name as “Berne” are, so he said, incorrect. (It may be noted that the tribunal led the applicant through parts of his evidence in chief).

17.     The applicant said that he went to school in Hastings, New Zealand, between the ages of 5 and 6. When he was six his family, consisting of his mother Emily O’Malley, his sister Angela O’Malley, his brother Wade O’Malley and the applicant himself came to Australia. Wade went back to New Zealand subsequently and the applicant is not, so he said, in contact with him. His mother Emily O’Malley is divorced. After coming to Australia she had two further children, Billie McGoy (a sister) and Luke McGoy (a brother) who live with their mother. His mother receives and lives on social security. So too does his sister Angela who has children of her own, her boyfriend having died.

18.     After coming to Australia the applicant attended Fairfield Primary School from 1986 to 1991. In 1991 he started at Fairfield High School but in 1992 moved to Busby High School because it was nearer to his mother’s home. He was expelled from that latter school for “fighting”. He tried to get into Bonnyrigg High School which is also near his mother’s home, but was refused entrance because “I know too many people”; (the tribunal does not know what that final statement was intended to convey).

19.     The applicant first, so he said, went into gaol in 1998 after being convicted of armed robbery. He was subsequently and in 2000 sentenced to a further term in gaol. He said “I think I went to gaol for drugs”. He said also that all of his subsequent convictions were driving offences and in particular driving while disqualified.

20.     While in gaol he was visited by his sister and his mother. He came out of gaol in February 2005 and is currently detained at Villawood. While in gaol he obtained a forklift licence and also a licence which enables him to drive a bobcat.

21.     The applicant said that when he came to Australia he got into a routine of “hanging out with junkies” and in consequence of which he became a heroin addict. In respect of that addiction he now takes a drug called Subutex. A Subutex prescription costs $60 and he receives $30 per week from Villawood and thus could not afford the drug; however it is provided to him free of charge by the authorities.

22.     When asked why he wanted to stay in Australia he said “I want to do so many things and my family is here”. He agreed that he had had warnings of which he took no notice. He said that he knew he could be deported but that all he wanted was heroin. He said also “I know that I have stuffed up my life”.

23.     The applicant said that the offence which resulted in his most recent gaol offence was a disqualified driving offence but that he was merely trying to start his girlfriend’s car and using for this purpose its clutch.

24.     The applicant said that the armed robbery related to the robbing of a drug dealer and in respect of which he was armed with a knife; (it may be noted that the sentencing remarks refer to five counts of robbery).

25. When asked why no member of his family would be giving evidence he said that this was because he was not ready for the hearing and because “pro-bono knocked me out”. He said also that he had asked for his green book which, so he said, contained documents not included in the G documents but that he only received it last night. He said also that he has a bad memory and cannot remember something read by him even a short period previously. (The tribunal does not know what is meant by the green book, but pursuant to section 500(6J) of the Act would not be entitled to take account of any evidence of which notice has not been given in accordance with the requirements of that section).

Cross Examination     

26.     The applicant was referred to G14 page 63 and the notes of his interview on 20 December 1999. He said that “I can’t say I remember it”.

27.     The applicant was referred to the fact that (G14 page 66) he said that he had travelled to New Zealand. He said that he had travelled to New Zealand to visit his grandmother on occasions, and that his grandmother is now deceased.

28.     The applicant was referred to the fact that he has referred to his father and his brother Wade as resident in New Zealand. He was asked why he did not include Che O’Malley born 17 September 1973 referred to in the questionnaire at G26 page 115 as a brother. He said that Che is his brother but “I don’t call him my brother”. He agreed that Che is a half-brother who is resident in New Zealand.

29.     The applicant said that in addition to heroin he used marijuana and last smoked it in gaol about five months ago. He said that he started marijuana when he was 12 or 13.

30.     The applicant was referred to G page 67 and asked whether he believed (in 1999) that he was free of drugs. He asked whether the question related to the questionnaire completed by him. When told that it related to his interview he said that he was drug-free in 1999 but went back to heroin after coming out of gaol.

31.     The applicant was then referred to the questionnaire (G26 page 112 to page 121) dated 20 April 2003 and provided on 2 May 2003. In answer to a question contained in the questionnaire as to whether he then believed that he was rehabilitated he had answered in part at G26 page 120 “I have a willingness to attend N/A (Narcotics Anonymous) on a regular basis upon my release to facilitate and maintain a drug free environment and my relationship”. The applicant was asked whether he intended to maintain his drug-free status and he answered “Yes. I was in gaol”; (he had given evidence a short while previously of having smoked marijuana in gaol five months previously).

32.     The applicant’s attention was then drawn to G33 page 144 which indicates that post the questionnaire (in 2003) there were five drug related incidents in 2004. He asked the applicant why, when he had twice previously said that he was drug-free, he then went back to drugs yet again. He answered that “in gaol there is not much to do and you get stressed”.

33.     The applicant had said that he first went to gaol in 1998 for armed robbery. Mr Webb put it to him that he received gaol sentences before that and on 24 May 1998 (see G41 page 173). His answer was that they were children’s court offences and that he was only eighteen at the time.

34.     The applicant had said that since 2000 his offences were driving related only. Mr Webb pointed out (and the applicant agreed) that there were offences of other kinds and including break and enter (7 November 2001), trespass (3 March 2003), larceny (3 March 2003) and receiving stolen goods (31 March 2004).

35.     The applicant was referred to the sentencing remarks and the judge’s note that he intended to take a TAFE course (G5 page 44). He said that he had not attended any TAFE courses.

36.     The applicant was then referred to the fact that in 1999 his mother, sister and Tyla Kenzie had all said that he was rehabilitated. He was referred in particular to G13 page 60, G15 page 70, G16 page 75 and G17 page 79. He agreed that they all stated that he was rehabilitated. He was referred also to G36 page 161, a letter dated 17 December 2005 (sic) in which he said inter alia “… all I need is this one chance to redeem myself. The reason in saying this is because we got a job out there waiting for me. I was working there before I came to gaol.”

He was asked whether he had not had a chance previously having regard to the warning letter G21 page 100. He agreed that he had had a chance previously and that he had not taken it.

37.     The applicant agreed also having regard to G34 page 147 that he had used various pseudonyms. He said “I just changed my name around so that I wouldn’t go back to gaol”.

Re-Examination

38.     The applicant said after his cross-examination ended, that if he were given an opportunity he would make something of his life. If he had not been sent to Long Bay, so he said, he would still be working. He also said that “I went to gaol for driving”. That driving offence related to the clutch starting of a car belonging to Aine Morris who is his current girlfriend and referred to previously in these reasons.

39.     He said also that his behaviour was due to stupidity and bad friends.

PART C – DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE ACT – NO. 21 (“DIRECTION 21”)

40. It is clear enough that the applicant does not pass the character test; this is so because of his gaol sentences: section 501(7) of the Act. It is necessary in consequence to consider the discretion contained in Part 2 of Direction 21. References to numbered clauses in this Part C should be construed as references to numbered clauses in Direction 21.

41.     In accordance with clause 2.3 the primary considerations are:

“2.3     In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)      the protection of the Australian community; and members of the community;

(b)      the expectations of the Australian community; and

(c)      in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”

42.     Clause 2.3 must be read in conjunction with clause 2.5 which provides:

“2.5     The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)      the seriousness and nature of the conduct;

(b)      the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)      whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”

43.     The applicant’s offences were unquestionably serious within clause 2.6, and in particular, clauses 2.6(e) and 2.6(l).

44.     Clause 2.10 of Direction 21 reads as follows:

“2.10    It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:

(a)      a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;

(b)      a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and

(c)      the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

The applicant received a strict warning in 1999. His conduct thereafter indicates that he did not heed it. In the view of the tribunal the risk of recidivism is substantial.

45.     As to clause 2.11 the cancellation of the applicant’s visa might well serve, in the opinion of the tribunal, as a deterrent.

46.     The expectations of the Australian community, even on a compassionate basis would in the view of the tribunal be such that a person such as this should not continue to hold a visa.

47.     As to clause 2.17 it is necessary to repeat that there was no evidence of any kind of any hardship to any family member or for that matter his girlfriend Aine Morris. His family in Australia would not have seen much of him over the past years if only because he was in gaol. On the basis that Aine Morris is a consultant psychologist in her 40s, it is surprising that she did not give evidence. In the context of clause 2.17 it is necessary in particular to refer to clause 2.17(k) which reads as follows:

OTHER CONSIDERATIONS

2.17     When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

…

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

48.     The applicant has said that all of his family are in Australia. This is not so in that he has a father, a brother and a half-brother in New Zealand. The applicant said that he does not wish to see his father and considers that Wade gave him his heroin habit. He said also that he does not regard Che as a brother. The fact remains that he does have family in New Zealand even if, for whatever reason, he does not get on with them.

49.     It cannot be said that the applicant’s evidence given before the tribunal was coherent. At the same time it must be remembered that he is an ill-educated young man, whose lack of education can discerned from his letters in the G documents. On occasions during his evidence, he made reference to his youth at the relevant time. His difficulty is that his bad behaviour continued over a lengthy period of time as appears in clear terms from the facts contained in the respondent’s statement of facts and contentions and set out previously in these reasons. Of particular significance too is the fact that in respect of the robbery the Judge found that it was “a very serious home invasion. People were put at risk, put in terror”. And it is even more to the point that his criminal career was continued after he was threatened with deportation and after he was given another chance.

50. When the tribunal considers the evidence as a whole there are factors against the applicant, some of them serious, and nothing in his favour. There was no evidence of recent good conduct. There was also, as I have indicated, no evidence of hardship to any relevant person. The tribunal does not know why the applicant said he was not ready for the hearing. More than a month previously and at the directions hearing on 1 March 2005, the provisions of section 500(6H) were explained to him. He said that “pro bono” had not been helpful. However he has family in Australia who might have been expected to come to his aid.

51.     This is quintessentially not a case in which the discretion can be exercised in favour of the applicant, and the decision under review must accordingly be affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.

Signed:         Andrew Garcia         
  Associate

Date of Hearing  6 April 2005
Date of Decision  15 April 2005      
Solicitor for the Applicant          Applicant self-represented

Solicitor for the Respondent      Mr T Webb