Pizlea and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 49

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1462

GENERAL ADMINISTRATIVE DIVISION		)
Re		Alexandru Pizlea

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date25 January 2006

PlaceSydney

Decision The decision of the respondent is affirmed.

..............................................

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visaex – on-shore visa cancellation – visa cancelled on the grounds of the applicant’s substantial criminal record including six years sentence for possessing a controlled substance – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant in being returned to his country of citizenship – applicant concedes he fails the character test – found that the applicant has not acknowledged his offences or shown any remorse for them and lacks any insight into his criminal behaviour, he presents a significant risk of re-offending and the tribunal has no confidence that he would resist the temptation to again make “easy money” from criminal activities – found that affirming the decision would not be in the best interests of the applicant’s daughter but the other considerations outweigh her interests – held the decision of the respondent is affirmed.

Migration Act 1958 ss 91U(2), 499, 501, 501(2), 501(6)(c)(i), 501(7)

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

25 January 2006	Professor GD Walker, Deputy President
Summary

1. The applicant, Alexandru Pizlea, aged 41, who is a citizen of Romania, first arrived in Australia on 25 February 1990 on a subclass K4C23 (Unfunded SHP – East Europeans/Romanians) visa. On 1 September 1994, he was granted a special category transitional (permanent) BF visa by operation of law under the Migration Reform Act.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, decided to cancel Mr Pizlea’s special category visa on the grounds that he does not pass the character test because of his substantial criminal record and past and present criminal conduct.  That is the decision to be reviewed by the tribunal.

Issue

3. In this case, the applicant fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having received on 27 April 2001, a sentence of six years imprisonment for possession of a controlled substance for sale, namely heroin. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.

Background

4. Mr Pizlea was born in Romania on 7 March 1964 and is aged 41. He is a citizen of Romania. He has two adult children from his first marriage who live in Romania. He first came to Australia on 25 February 1990, at the age of 26, as the holder of a subclass K4C23 (Unfunded SHP – East Europeans/Romanians) visa granted on 22 February 1990, which on 1 September 1994, was converted to a special category transitional (permanent) BF visa by operation of law under the Migration Reform Act.

5.      Between 1990 and 2001, Mr Pizlea was convicted of a number of number of serious offences in both New South Wales and South Australia, including the following:

Charge Date	Sentence Date/Court	Offence	Sentence
27/9/1990	8/4/1991 Liverpool Local Court	1. Supply prohibited drug 2. Supply prohibited drug	1. Committed for trial, Sydney District Court. 2. Adjourned generally
28/9/1990	8/4/1991 Liverpool Local Court	Common assault	Convicted NBC s80AA warrant to issue for penalty
28/9/1990	10/4/1991 Liverpool Local Court	Assault (indictable)	3 months periodic detention
19/2/1991	25/6/1991 Campsie Local Court	1. Unlicensed driver 2. Unregistered vehicle 3. Uninsured vehicle (two counts)	1. Fined $150 2. & 3. On each charge $100 ($400)
19/2/1991	25/6/1991 Campsie Local Court	1. Unregistered vehicle 2. Uninsured vehicle	1. Fined $100 2. Fined $150
4/8/1991	16/3/1992 Fairfield Local Court	1. Illegal use of motor vehicle 2. Unlicensed driver	1. Fixed term imprisonment 6 months from 16/3/1992. 2. Fined $400. (On appeal in the Parramatta District Court on 13/11/1992, appeal dismissed, conviction confirmed, sentence to date from 30/7/1992.)
17/8/1991	20/12/1991 Fairfield Local Court	Carried in conveyance known to be stolen	140 hours community service.
29/4/1992	12/6/1992 Liverpool Local Court	Supply prohibited drug (3 counts)	On each count 12 months imprisonment to date from 29/4/1992 (to be served concurrently). (On appeal in the Campbelltown District Court on 19/11/1992, appeal dismissed, conviction confirmed.)
14/3/1996	3/4/1996 Fairfield Local Court	Possess prohibited drug (amphetamine)	Fined $500.
30/1/2001	30/1/2001 Bankstown Local Court	1. Possess heroin for sale, South Australia bench warrant 2. Breach of bail, application to re-determine	Extradition order to South Australia made.
15/9/1996	27/4/2001 District Court of South Australia	Possessing heroin for sale (2 counts)	Convicted, sentenced to 6 years commencing 20/1/2001, non-parole period of 4 years commencing 20/1/2001. (Conviction appealed to Supreme Court of South Australia, 30/10/2001 appeal dismissed;  appeal to the Full Court of the Supreme Court, 23/11/2001 application to appeal refused; appeal to the High Court of Australia, application for special leave to appeal refused 15/8/2002.)

6.      On 12 June 1992, Mr Pizlea was convicted in the Liverpool Local Court on three counts of supplying a prohibited drug, namely heroin, for which he was sentenced to 12 months imprisonment on each count, to be served concurrently.  On 19 November 1992, the applicant was again convicted and sentenced to a total of three years with a minimum term of 18 months imprisonment for supply prohibited drug, namely heroin, which was not less than the trafficable quantity. 

7.      On 3 November 1995, the applicant was informed by the then Department of Immigration and Ethnic Affairs that his conviction for supply prohibited drug rendered him liable for deportation, however the Minister had decided not to order his deportation but to warn him that any further conviction would lead to the question of his deportation being reopened.  He was informed “Disregard of this warning will weigh heavily against you in the event of your case being re-opened.  You should be fully aware that your deportation will be seriously reconsidered should you re-offend” (G12 p359).  This letter was sent to the applicant certified mail.

8.      On 15 September 1996, the applicant was arrested and charged with possession of a prohibited substance for sale, namely heroin, contrary to s 32(1)(e) of the Controlled Substance Act 1984.  The heroin amounted to 224 grams, of which 157 grams was pure heroin. The wholesale value of the heroin was approximately $50,000, the street value being approximately $448,000.   On 27 April 2001, the applicant was sentenced to six years imprisonment with a non-parole period of four years, the sentence to commence from 20 January 2001.

9. On 8 April 2005 a delegate of the Minister decided to cancel Mr Pizlea’s visa under s 501(2) of the Act, however on 12 October 2005, the Federal Court of Australia, by consent, quashed the decision because of an administrative error in the decision record (reference having been made to the incorrect visa) (G7 p64). Mr Pizlea’s transitional (permanent) visa was subsequently reinstated.

10.     On 13 October 2005 (G6 p32), an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Pizlea that he was considering cancelling his visa because of his substantial criminal record.  He was advised that in making that decision, the delegate or the Minister would be taking into consideration his offender history report, Certificate of Record in regard to his sentence on 27 April 2001, the Certificate of Record in regard to his sentence on 19 November 1992, the judge’s sentencing remarks of 27 April 2001 and 19 November 1992, the report of the manager of Yatala Prison dated 11 February 2005, parole report of 13 April 1994, the warning letter sent to him from the department on 3 November 1995 and reports obtained from the South Australian Parole Board.  He was given until 27 October 2005 to comment or provide information which should be taken into account in making the decision.

11.     Mr Pizlea responded by letter dated 28 October 2005, received by the department on 2 November 2005 (G7 pp50-336).  He submitted that he had a seven year old daughter, Catherina Alexandra Pizlea, born on 29 August 1998, who is an Australian citizen and that it would cause hardship to her to grow up without parental and financial support from him and that his deportation would break up their family;  he is in a long-term relationship with his de facto Isabella Loredana Kokosi, who he planned to marry before his incarceration; he alleged that he had been abused by prison officials at both the Yatala Prison and Mobilong Prison, South Australia; that he was innocent of his first offence which occurred seven months after his arrival and that “I did not know any thing about drugs as a matter of fact I was into a car with a Girl and that at that time I did not even speak English” and that he is not guilty of the offence for which he was imprisoned and had told this to the High Court of Australia; and he denied that he was from a broken home or is a drug addict and that he only attended the drug and alcohol courses while in prison in New South Wales because these reports go before the parole board.    He also submitted to the department documents relating to his appeal against his South Australia conviction in the South Australia Supreme Court, South Australia Full Court of the Supreme Court and High Court of Australia as well as character references from Carmel Costin, Reverend Father Petre of St “Buna-Veastire” Roman Orthodox Parish Church in Sydney, Aurel and Maria Ionescu, and Isabella Kokosi, his de facto spouse.  These character references all attested that he should be given a second chance.

12.     On 9 November 2005, having taken into account his written submissions, a delegate of the respondent decided to cancel Mr Pizlea’s transitional (permanent) visa because of his substantial criminal record (G14 p368).  He was notified of this decision by letter dated 9 November 2005 and on 17 November 2005, lodged an application for a review of that decision by the tribunal.

13.     Mr Pizlea was released from prison in South Australia on 11 November 2005 and, by requirement of law, immediately transferred to the Villawood Immigration Detention Centre, Sydney.

14. At the hearing, the applicant was represented by Christopher Levingston, solicitor, Christopher Levingston & Associates, and the respondent was represented by Andras Markus, special counsel, Australian Government Solicitor’s office. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the Act”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing.  Mr Pizlea and Isabela Kokosi both gave oral evidence in person.

Relevant Law and Policy

15. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

16. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

17. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

18. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Evidence

19.     As the applicant conceded the character issue, the evidence related to the discretion issue.

20.     In his sworn statement filed with the tribunal before the hearing, Mr Pizlea said:

I have previously been convicted of drug related offences on 12 June 1992 … and 19 November 1992 … and subsequently on 30 June 1999 …

In each case I was wrongly convicted and I deny any serious criminal misconduct.

…

I have done nothing which would warrant my imprisonment and subsequent removal from Australia.  I protest my innocence and I insist that I have done nothing wrong.  If I am removed from Australia it would be a terrible crime.

21.     In his oral evidence, the applicant adopted his sworn statement but immediately said that he did not claim that he had been wrongly convicted in each case.  His New South Wales convictions he admitted, and disputed only the South Australian conviction, against which he had appealed to the South Australian Court of Criminal Appeal.  When that appeal was dismissed, he had unsuccessfully sought special leave to appeal to the High Court.  He later claimed, however, that he was wrongly convicted in New South Wales of supplying heroin, although he did admit that he had it in his possession.  When asked if he adhered to his denial of any serious misconduct, he replied that he had only been in prison twice.  He then spent some time attempting to deny the undeniable fact that he had been convicted of supplying heroin on three separate occasions.

22.     The applicant had come to Australia when he was just under 26 (25 years, 11 months) and had made friends here.  He had “made mistakes” because he did not know the country’s laws or understand the seriousness of his conduct, and received his first conviction in the year of his arrival.  He did not know that trafficking in heroin was illegal and indeed had never heard of heroin in his country.

23.     He conceded that he had been convicted of indictable assault, for which he had received a sentence of three months’ periodic detention, but said that he had been wrongly convicted of malicious damage to a building when all he had done was to take a shortcut through the property.  When asked if he had convictions relating to motor vehicles, he admitted only that he had some traffic convictions, although he was serving a six-month concurrent sentence for illegal use of a motor vehicle when he was convicted the second time for supplying heroin in November 1992 and had been sentenced to 140 hours of community service in 1991 for being carried in a conveyance he knew to be stolen.

24.     The applicant claimed emphatically and repeatedly that he had never been addicted to heroin, or indeed used it.  He had undertaken drug and alcohol courses while in prison, but only because he had been advised to do so because his convictions included drug offences.  The other evidence shows, however, that he had repeatedly claimed, both when on oath and when not, to be a heroin addict, or to have been one but had overcome the addiction (G pp263, 271, 338, 340, 341, 351, 356).  In his written submission to the South Australian Supreme Court stating that “I am now writing this in jail with the help of a peer typist”, he declared, “so yes I had this habit but I got over it of which I was proud” (G p271).  At the hearing he attempted to explain those words by saying that the typist must have added them, an improbable assertion.

25.     Apart from claiming innocence in relation to some or all of his convictions, the applicant gave evidence regarding his relationship with his de facto spouse, Isabela Kokosi and their seven-year old daughter Catherina.

26.     He said that Ms Kokosi had come to Australia at the age of eight (she said nine) and speaks Romanian.  At home they speak mainly English and his daughter speaks no Romanian.  When he had been located by New South Wales police before being extradited to South Australia to face sentence, he had held a job, paid tax and provided for his daughter.  That 18-month period was the only time the three of them had lived together.  Although he had been in jail for most of his daughter’s life, he had remained in communication with her, as with Ms Kokosi.

27.     Ms Kokosi adopted her statutory declaration (Exhibit A3), supplemented by her oral evidence, in which she said that she arrived in Australia in 1981 at the age of nine and is now an Australian citizen.  She had known the applicant personally for more than eight years and they had a continuing relationship during that whole period.  Their daughter Catherina Alexandra Pizlea is aged seven and a half years.  At home they speak both English and Romanian, and Catherina speaks some Romanian.

28.     She describes the applicant as a very hard-working man who had always worked hard to provide for the family.  Ms Kokosi has three children from a previous relationship, but her mother has custody of them.

29.     While the applicant was imprisoned in South Australia she visited him a couple of times a year, travelling down by train with her daughter.  She had daily telephone contact with him.  She said her daughter asks her every day when her father is coming home.

30.     Ms Kokosi is currently employed by a company named Para Quad as a warehouse operator, a position she had held for more than two years.  She believes she is in a good financial position to support the applicant until he finds employment.  She said she did not know about his criminal record when the relationship began, but found out soon after.  She was unaware of the 1996 offences for which he was tried in 1999 until those proceedings began.  She had, however, known that he was absconding while on bail awaiting sentence when she travelled with him from South Australia to New South Wales.

31.     Ms Kokosi’s evidence seemed generally credible as far as it went, but the same cannot be said of the applicant’s.  He contradicted his own earlier sworn and unsworn statements concerning material matters such as his guilt of the offences of which he was convicted and whether he had ever used heroin.  He made improbable claims, including that at the time of his initial arrest for drug dealing in 1990 that he did not know heroin trafficking was illegal.  In the unlikely event that any intelligent (G p340) man could have been under that misapprehension, it could not have survived his being charged with that offence in 1990.  But he continued to offend in the same way.

32.     His oral evidence was disputatious and evasive.  That was consistent with his written submission to the department in connection with the proposed cancellation of his visa.  In it he portrays himself as the victim of police and judicial corruption and of vindictive plots by corrections officers, including a bizarre conspiracy to use frequency field manipulation or some other form of remote control to interfere with his genitalia (G p58).  He likens himself to an inmate of a Nazi concentration camp (G p95) and calls for a royal commission into police and judicial abuse of human rights, assaults and similar matters (G p60).  If his visa is cancelled, he wrote, his daughter would be placed in a position similar to that of the “stolen generation” (G p50).  The tone is accusatory throughout and displays no awareness of the gravity of his crimes.

33.     It is plain that he is in a state of denial about his offences and the harm they would have caused in the community.  That tendency was apparent to the parole officer who wrote a report on 13 April 1994 in which he said:

It is difficult to confidently state that Mr Pizlea will not offend again in a drug related manner since he exhibited little insight into his drug use and appears to be in a state of denial (G p357).

34.     In similar vein, the South Australian Parole Board wrote on 14 February 2005 that:

The Board did not feel at interview that Mr Pizlea had a genuine understanding of the criminogenic factors leading to his offending nor of the effect that his offending had on the community.  Whilst he certainly used words which indicated such an understanding, the Board did not believe he was genuine, ie, he was telling the Board what he thought we wanted to hear but was not genuinely contrite nor was he truly insightful.  If he had been determined to remain drug-free it is difficult to understand that he would have taken marijuana whilst undergoing a re-socialisation program and on work leave at the Adelaide Pre-release Centre (G pp80-81).

35.     I have considered the possibility that his evidence could at least in part have been affected by anxiety or the product of a somewhat combative disposition.  But the evidence, especially cumulatively, is too strong and consistent for that.  It is plain that he is willing to say whatever he thinks will help him at the particular moment.  He has no clear willingness to acknowledge his offences, let alone any remorse for them.  He has a highly developed ability to rationalise his own wrongdoing and to some extent is able to convince himself of the truth of his own fabrications.

36.     Prior to the hearing, a statement was also filed by his daughter, Catherina Pizlea, however after objections to its contents by Mr Markus for the respondent, this was not taken in as evidence.

Application of the Law and Findings of Fact

37. As stated above, there is no dispute, and I find accordingly, that Mr Pizlea does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, the applicant has been convicted of two separate occasions for terms of greater than 12 months, on 19 November 1992 for three years with a minimum term of 18 months, and on 27 April 2001 for six years with a non-parole period of four years.

38. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Pizlea’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

39.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

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.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

40.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraphs (a) the trafficking (including possession for this purpose) or commercial dealing of illicit drugs, (f) assault or any other form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.

41.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

42. It was submitted by the applicant’s representative at one stage that as the applicant had come to Australia as a refugee, the respondent could not exercise her powers under s 501 without a proper and genuine consideration of Australia’s non-refoulement obligations under the International Convention and Protocol relating to the Status of Refugees which provides that a person can not be deported unless convicted of a serious offence (Article 33(2) of the Convention Relating to the Status of Refugees). Section 91U of the Migration Act 1958 relevantly provides that for the purposes of applying Article 33(2) of the Refugees Convention, a serious offence includes “a serious drug offence” punishable by “imprisonment for a maximum term of not less than three years” (section 91U(2)). On 27 April 2001, the applicant received a sentence of six years with a non-parole period of four years, which is therefore a “serious drug offence” under s 91U(2). I do not think, therefore, that the Refugees Convention would prevent deportation in this case.

43.     The respondent submitted in her statement of facts and contentions (Exhibit R1) that the applicant in his letter to the department of 30 March 2005 had raised some concerns about the political instability and unrest in Romania but did not provide any specific information. There was no suggestion that he feared persecution for a Convention related reason if he were returned to Romania, and in any event, “such a suggestion would be entirely misplaced in view of the changes that have occurred in Romania since the applicant has left there”.

44.     At the hearing the applicant conceded that as the special visa under which he entered Australia was not actually a refugee visa, no non-refoulement issue could arise.  Consequently there is no need to pursue that issue further.

Protection of the Australian Community

45.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case, Mr Pizlea has committed a number of very serious crimes including crimes involving violence and drug trafficking.  His first conviction was for indictable assault for which he received three months’ periodic detention.  Paragraph 2.6 of Direction No 21 states:

2.6      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;

·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.  It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …

46.     Paragraph 2.7 of Direction No 21 states:

It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community.  Decision-makers should have due regard to the Government’s view in this respect, including:

(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;

(b)the repugnancy of the crime:

·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

47.     On 19 November 1992, the applicant was sentenced to three years imprisonment with a non-parole period of 18 months for supply a prohibited drug, namely heroin, which was not less than the trafficable quantity.   In sentencing the applicant in the District Court, Judge Rummery said (G8 p338):

In his trial the prisoner did not dispute his possession of the heroin but said he was an addict and that he had the heroin upon his person and obtained it for his own use. I think it is fair to say, given the issues that went to the jury, that the jury did not accept by their verdict the prisoner’s claim that it was for his own use.

He has convictions commencing on 10 April 1991 and between then and 12 June 1992.  His first conviction is for indictable assault in respect of which he received three months periodic detention.  He has convictions for being an unlicensed driver, driving an unregistered vehicle and an uninsured vehicle and such matters. He has convictions also for malicious damage, entering enclosed lands, illegally using a motor vehicle and being carried in a conveyance.

At Liverpool Local Court on 12 June 1992 he was convicted on three charges of supply prohibited drug in respect of which he received on each count a sentence of twelve months imprisonment to date from 29 April 1992.  Those convictions are the subject of an appeal … the prisoner intends to withdraw those appeals … I am proceeding on the assumption that those appeals will be withdrawn.

He is presently serving … a sentence of six months imposed for illegal use of a motor vehicle.

The matter that I have to sentence the prisoner for is the more serious of all of the charges that are now in the prisoner’s record.

The prisoner has described himself, and certainly did to the jury, as a heroin addict.

The offence is serious.  I am sure that the prisoner who, on his own description of himself, has been a heroin addict, understand that.

48.     On 27 April 2001, the applicant was sentenced to six years imprisonment with a non-parole period of four years for possessing a prohibited drug, namely heroin, for sale (on analysis, the parcel of heroin weighed 224 grams, including 157 grams or 71% which was heroin).  In sentencing the applicant, Judge Bishop of the District Court, Adelaide, South Australia, after referring to the applicant’s evidence that he was not guilty and that his defence of being present in Adelaide at the time of his arrest was a coincidence, stated (G9 p346):

…

On 11 June 1999 a jury was empanelled and, on 30 June 1999, the verdict of guilty was returned against you.  Then, unwisely, upon your application, I permitted your bail to continue to enable you to attend personal and family matters.  Unfortunately, you absconded before sentencing submissions could be made and you were not apprehended until 20 January 2001 in New South Wales. …

…

Upon the evidence presented at your trial, you were detected in the offence of which you were convicted, that is, possession of heroin for sale at Frewville on 15 September 1996, during a police undercover operation in which Gugea was the focus of attention.  Gugea had previously arranged with Molnar to bring 224 grams (or half a pound) of heroin to Adelaide from Sydney and here sell it through Molnar, taking $52,000 back to his supplier in Sydney and earning $1,000 for himself.  Unbeknown to Gugea, Molnar, who was then on bail and awaiting sentence for offences of being in possession of heroin for sale and for endangering life, had agreed to assist the police in this operation, in the expectation that his assistance would earn for him a reduced sentence in respect of the offences for which he was then awaiting sentence.  Molnar was acting both as a police informer and an agent provocateur.

Having come to Adelaide, Gugea met with Molnar and an under-cover police officer outside the Rumanian church at Ovingham where you were standing with Gugea.  Gugea then accompanied Molnar and the police officer to the Arkaba Hotel and gave them a sample of the heroin to test.  Subsequently, Gugea, Molnar and the police officer drove to Salisbury to obtain the heroin.  There, near a delicatessen owned by your uncle, you arrived in a motor vehicle, spoke with Gugea and then got into the back of the undercover police vehicle with Gugea.  Molnar and the police officer were in the front of the vehicle.

On the Crown case, during the return drive to Arkaba, in response to Molnar’s request, you produced the parcel of heroin from your jacket and handed it to Molnar for inspection, following which Molnar handed the heroin back to you.  On the Crown case, you indicated your knowledge of and involvement in this offence by remarking in the car, “It’s like the other stuff”.  At the Arkaba, Gugea and you were arrested and the heroin was found by the police in the pouch at the back of the front passenger seat behind which you had been seated.

By their unanimous verdict, the jury rejected your defence that your presence in Adelaide that weekend with Gugea was coincidental;  that you had asked Gugea whether his friends could get you some marijuana;  that you had gone with Gugea, Molnar and the undercover police officer in the car from Salisbury to obtain marijuana;  that while you did see Gugea pass something to Molnar, you did not see what it was;  that you had never had the heroin physically in your custody or under your control;  that you never had it knowingly in your possession;  and that you were not acting in complicity with Gugea that day in relation to the heroin.

…

Because you still maintain your innocence of this offence, it is difficult to determine your role in the offence.  What is established of your role is that you were in possession of a substantial quantity of heroin for sale.  On the proved facts, I consider that you should be treated as towards the lower end of the scale of involvement in a substantial drug operation.

[Counsel] did not submit that your sentence should be reduced to reflect the circumstances of entrapment in the undercover operation.  In my view, he was correct in that regard.  The police officers acted in good faith, the undercover operation was approved under the Criminal Law (Undercover Operations) Act and I do not consider that you were induced to engage in criminal activity in which you would not have engaged but for the inducement rather you were merely detected and trapped in a type of criminal activity in which you were only too willing to engage when the opportunity presented.

Having regard to all relevant factors, including the role that you played in being in possession of the heroin as assistant courier to Gugea, the significant quantity of heroin, your knowledge of that significant quantity, the absence of an established course of conduct, your previous record of drug offending and the paramount need for general and personal deterrence in relation to such offences, the sentence of the court is that you be imprisoned for six years … I fix a non-parole period of four years.

49. In his submissions to the department the applicant enclosed copies of his appeals to the South Australian Supreme Court, South Australian Full Court of the Supreme Court and the High Court of Australia with regard to his conviction of 27 April 2001 alleging that he was not guilty of the offence. He also alleged he was not guilty of the matter for which he was convicted in New South Wales in 1992. Despite Mr Pizlea’s contentions as to his guilt or innocence in relation to a number of his criminal offences, “the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested … by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT)”: Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at paragraph 42.

50.     Nevertheless, as his denials of guilt formed such a central part of his case, I have studied the reasons for decision at the various stages of the proceedings in the South Australian Supreme Court and the High Court (Kirby and Hayne JJ, 15 August 2002) (G7 p147), together with the applicant’s written submissions and other appeal documents.  While his grounds of appeal are not fabrications (in the Court of Criminal Appeal he was represented by counsel, who would have wanted no part of such an exercise), I respectfully agree with the unanimous conclusion reached by their Honours at all stages (as well as by the jury) that his contentions lack substance.

51.     In her statement of facts and contentions (Exhibit R1), the respondent submitted that the applicant has repeatedly been convicted of involvement in the distribution of illicit drugs and that there is very little evidence of mitigating circumstances in the judges’ comments, parole reports or similar documents and that the applicant entirely lacks remorse or insight into his criminal behaviour and is not prepared to accept the consequences of such behaviour.  The fact that he now adamantly claims never to have used heroin himself only aggravates his drug crimes, which may now be seen to have been committed purely for profit.

52.     The second matter to be considered as an aspect of community protection is the risk of recidivism.  Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.  In this case, the applicant offended within months of arriving in Australia, when he was nearly 26 and thus no juvenile, and his convictions continued even after he received a warning letter from the department dated 3 November 1995 advising him that he was liable to deportation should he re-offend.  I note once again the comments of the Parole Board of South Australia dated 14 February 2005 (G8 p126):

He was convicted of possessing heroin for sale. … He maintains his innocence in relation to that and says that he was simply there to try to get some marijuana and was not aware that the people with whom he was involved had heroin.

…

Whilst incarcerated he has returned a urine test that was positive for cannabis at the Pre-Release Centre which resulted in him transferring back to Yatala.  He explained to the Board that a prisoner next to him asked him to have a smoke … and has not smoked since.  He says that was a mistake.

…

In view of his recent behaviour it is difficult to accept that he is likely to operate in an environment which is drug free.  Accordingly the Board has taken that into account. The Board did not feel at interview that Mr Pizlea had a genuine understanding of criminogenic factors leading to his offending nor of the effect that his offending had on the community.  Whilst he certainly used words which indicated such an understanding, the Board did not believe he was genuine i.e. he was telling the Board what he thought we wanted to hear but was not genuinely contrite nor was he truly insightful.  If he had been determined to remain drug free it is difficult to understand that he would have taken marijuana whilst undergoing re-socialisation program and on work leave at the Adelaide Pre-Release Centre.

53.     As against that, I also note the comments of Judge Bishop when sentencing the applicant (G9 p351):

I accept that, during the 18 months between your absconding from bail and being arrested in New South Wales, you were gainfully employed as a forklift driver;  that you did not reoffend; and that, in a sense, you had begun to re-establish yourself as a law-abiding citizen, that being an object of sentencing.

54.     He has good reports as an industrious, competent worker who performed without supervision in the Adelaide pre-release program, and earlier at Long Bay (G pp82, 340, 378).  He was also well regarded as an employee before incarceration (G p356).  His good record during the 18 months he was in New South Wales after absconding from bail in South Australia, is, of course, qualified by the fact that he was a fugitive from justice at the time, which circumstance also provided a particular incentive to avoid attracting adverse notice.

55.     In her statement of facts and contentions, the respondent submitted that the applicant’s risk of recidivism is high, taking into account that the applicant commenced his illegal activities shortly after arriving in Australia, his first offence being assault and that he disregarded a warning given to him on 3 November 1995 as to his possible deportation.

56.     As Mr Levingston pointed out, the South Australian parole board had (after some hesitation, it must be pointed out) decided that he could safely be released into the community and had granted him parole.  Before that, his breaches of prison discipline had been minor.  All that had to be balanced against the view that he presented a high to moderate recidivism risk.

57.     While giving due weight to these factors, I have nevertheless reached the conclusion that the applicant presents a significant risk of re-offending.  His denials of any serious wrongdoing by someone with an abhorrent criminal record, his lack of insight into the seriousness of his conduct, his disregard of a formal deportation warning and his opportunistic absconding from bail all support that view.  While he may be genuine in his present intention to obey the law and be a good family man, such is his propensity to rationalise his own wrongdoing that I can have no confidence that he would resist the temptation to make “easy” money when faced by the financial and other pressures of everyday life.

58.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11).  Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing:  Handle with Care (2005) 79 ALJ 448).  The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity.

Expectations of the Australian Community

59.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

60.     The applicant has accumulated a very serious criminal history with sentences of imprisonment totalling nine years.  As stated previously, the tribunal may not impugn or go behind the convictions or the sentences (Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at paragraph 42).

61.     In my view the community would regard the applicant’s record as abhorrent, especially his repeated convictions for heroin dealing.  While there would be sympathy for the position of his daughter, the community is well aware that the young victims of heroin trafficking are also someone’s daughters or sons.  In the absence of clear, across-the-board evidence of rehabilitation and reform, and it is absent here, I think the community would emphatically expect that the offender’s visa would be cancelled.

The Best Interests of the Child

62.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

63.     The applicant has a daughter, Catherina Alexandra Pizlea born on 29 August 1998, now aged seven, who is an Australian citizen.  She lives in Sydney with her mother.  In a letter sent to the department on 15 March 2005, Ms Isabella Kokosi, the applicant’s de facto spouse and also a citizen, said that “Our daughter Catherine is asking me every day when her dad is coming home.  Alex calls us every day to talk to myself and Catherine.  We love Alex very much and he also loves us. I wish that our family can be re-united and share our life together” (G7 p115).  It is not disputed that paternal-filial bonds exist between the applicant and Catherina.

64.     On the other hand, because of her father’s incarceration she had lived apart from him most of her conscious life.  If he re-offends there will be further separations as well, and a convicted serial heroin dealer can hardly be an ideal role model for a child in any event.

65.     If the decision under review is affirmed, Catherina’s mother will face the hard choice of keeping her in Australia while her father lives in Romania, seeing him perhaps only on occasional visits, or moving back to Romania with her de facto husband.  Modern communications such as the webcam have alleviated the stresses of separation to some extent, but not completely, and Catherina would inevitably experience some emotional hardship as a result of separation.

66.     If she were to move to Romania with her mother (and there is no evidence of any legal impediment to that), she would face some problems of adjusting to a new culture.  She speaks some Romanian, though, and it is well known that a child of seven or eight can quickly learn a new language, especially if the child has some knowledge of the language and both parents are fluent in it.  As Mr Levingston pointed out, she would not be able to access Medicare, but children and adolescents are not usually large users of medical services unless they suffer from some particular medical condition.  There is no evidence of any medical problems in this case.  There is no evidence about Romania’s education system either, but there is no reason to doubt that it has a functioning school system.

67.     While the 2005 Department of Foreign Affairs and Trade country information on Romania reports that the national economy is performing well (G13 pp361, 364-365), it is presumably starting from a rather low base.  It is therefore likely that Catherina would have a more comfortable childhood and adolescence in Australia than in Romania.  As an Australian citizen she could, however, return when she reaches 18, or earlier if her parents consider that suitable arrangements can be made for her here.  Further, the opportunity to become familiar with a foreign language and culture could be useful for her in today’s globalised economy.

68.     On balance, however, I conclude that affirming the decision under review would not be in the interests of the child, although not to the extent that it might be in more usual circumstances.

69.     The respondent in her statement of facts and contentions (Exhibit R1) accepts that a decision affirming the decision under review would not be in the best interests of the child but submits that the other considerations outweigh the interests of the child in this case.

Other Considerations

70.     Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision.  These other considerations include:  the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

71.     The applicant has a grandfather, an aunt and uncle who reside in Australia.  He has been in a genuine de facto relationship with Isabella Kokosi, who was also born in Romania, since 1997 but has spent a significant period of that time in prison.  

72.     His parents apparently still live in Romania and own their own house.  By his own account he seems to be on good terms with them (G p62) and would therefore have the basis of a family support network if he were to return to live in Romania.  He has a number of useful skills (including now a knowledge of English), is an industrious worker and should have no particular difficulty in finding employment there.  Romania is, of course, his first language.  While he would suffer some hardship if his visa were cancelled, it would probably be of a short-term nature.

73.     The evidence of rehabilitation in this case relates mainly to the applicant’s qualities as a worker and is not matched by any recognition of the seriousness of his crimes or of their potential impact on the community.

74.     Ms Kokosi, as was noted above, would be in a difficult position if the decision under review were affirmed.  If she were to return to live in Romania with the applicant she would face greater problems of adjustment than he would, because she has been away from that country for a larger proportion of her life.  She can, however, speak Romanian and does so daily when living with the applicant.  There is little evidence about Ms Kokosi’s family composition other than that her mother lives in Australia and has custody of Ms Kokosi’s three children from a previous relationship, by reason of what the applicant’s solicitor termed some “earlier difficulties” experienced by Ms Kokosi.  She is a largely innocent party in the case, apart from her collaboration in the applicant’s flight from South Australia while on bail.

75.     If the decision under review is affirmed Ms Kokosi will face a hard decision and some hardship whichever course of action she chooses.  On the other hand, she acknowledged that she became aware of the applicant’s criminal record a short time after the relationship with him began, but she elected to continue in the relationship.

76.     While the best interest of the child and the other considerations weigh against affirming the decision under review, in my view considerations of community protection and expectations carry the greater weight in this case.  The decision under review should be affirmed.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  10 January 2006
Date of Decision  25 January 2006
Representative for the Applicant               Mr C Levingston, Christopher   Levingston & Associates
Representative for the Respondent          Mr A Markus, Australian Government   Solicitor's office