Pollock and Department of Immigration and Multicultural Affairs - [2000] AATA 746

DECISION AND REASONS FOR DECISION [2000] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/118

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KEITH RAYMOND POLLOCK
  Applicant

And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date25 August 2000
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] R N J Purvis
Deputy President
CATCHWORDS
MIGRATION – transitional visa – visa cancelled on grounds that applicant not of good character – Minister's directions – Migration Series Instructions – past criminal conduct- offences abhorrent to Australian community – imprisonment for 7 years – whether likely to re-offend – best interest of applicant's child – applicant's ties to the Australian community – proposal of applicant is allowed to stay in Australia

Migration Act 1958, sections 499, 501.
Baker v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 187 ; (1997) 24 AAR 457: (1997) 45 ALD 136 ; (1997) 153 ALR 463
Hohepa v Minister for Immigration and Multicultural Affairs [1999] AATA 210
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Pollock v R (1993) 67 AcrimR 166
Rice v Minister for Immigration and Multicultural Affairs [1998] AATA 13034

REASONS FOR DECISION

25 August 2000 The Hon Mr R N J Purvis, QC, Deputy President

THE APPLICATION:

This is an application by Keith Raymond Pollock ("the Applicant") seeking review of a decision of a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") to cancel the permanent transitional visa granted to him on 1 September 1994. The delegate, on 11 January 1999, decided that the Applicant was not of good character pursuant to section 501(2)(a)(i) of the Migration Act 1958 ("the Act") and that the visa then held by him be cancelled with the result that he became an unlawful non-citizen liable to be detained and removed from Australia.
In his application the Applicant pleaded to be allowed to remain in Australia and contended that he should be so permitted on the following grounds:
·     to be with his son and the son's mother;
·     his son and the mother are his family and life;
·     he cannot return to Northern Ireland because of the political involvement of family members;
·     the only friends and family he now has are in Australia;
·     he has a job waiting for him on release from detention;
·     he has a strong support network which will help him assimilate back into society;
·     in England, where he would go if removed from Australia, he has no family, friends, money, income or support;
·     he has worked hard during his incarceration to overcome his alcohol and drug dependency;
·     he has addressed the behaviour that led to his incarceration through counselling and self improvement courses;
·     he has done his utmost to make himself a better person;
·     he has deep remorse for his crimes; and
·     he should not be punished more by being removed.

The position taken by the Respondent is that:
·     the Applicant's offences are serious;
·     his risk of re-offending remains high;
· he is not a person of good character pursuant to section 501(2)(a)(i) of the Act; and
·     even though his son and the son's mother would suffer considerable hardship, that he has maintained employment in Australia and has made efforts to rehabilitate himself backed up by favourable reports, nevertheless these factors are outweighed by the nature of the offence and the risk of recidivism being high.

THE HEARING:

At the hearing the Applicant appeared on his own behalf, the Respondent being represented by Mr Hurley, a departmental advocate.
There was admitted into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 to T17. Written material tendered by the parties was received and marked as exhibits, namely:
Exhibit No A B C D E F G H I J K L M N O P Q 1 R 2 Description Handwritten document of Applicant dated 16 June 1999 Statement of Patricia Waddell dated 19 May 1999 Statement of Rev P Baines, Chaplaincy Service, Silverwater Correctional Centre Statement of Raymond Pollock (undated) Statement of Janette Platt dated 20 October 1993 Statement by Helen Walker, Children of Prisoners' Support Group Co-op Limited dated 24 May 1999 Letter signed by Miroslav Milenkovic, Department of Corrective Services, dated 17 May 1999 Reports of J Phali, Department of Corrective Services, dated 18 January 1999; and Bill Poulton, Department of Corrective Services, dated 18 January 1999 Report of Pauline Nolan, psychologist dated 20 October 1999 Statement of David Gould, Education Officer, Silverwater Correctional Centre dated 12 January 1998 Statement of Linda Codling, Drug & Alcohol Worker, Silverwater Correctional Centre dated 13 January 1998 Reference by Neill Evans, Manager, Goodlet & Smith Pty Limited dated 27 June 1989 Reference by John Chong, Consultant Surgeon, dated 29 July 1988 Reference by Raymond Pollack (Senior), undated Reference by M J Cooper, undated Reference by Rainee Abberfield dated 22 October 1999 Reference by Linda Codling, counsellor, Department of Corrective Services, dated 20 October 1999 Report by David Bright, psychologist and Natalie Mamone, Acting Therapeutic Manager/Acting Senior Psychologist, dated 14 June 2000 Report of Jan Cregan, psychologist, dated 30 January 2000 Inmate Records dated 21 June 2000.

The Applicant, Ms Pauline Nolan, (a psychologist), Miss Patricia Waddell (the son's mother), and Ms Margaret Pollock (a sister of the Applicant), gave evidence and were cross-examined on it.
RELEVANT LEGISLATION AND GENERAL DIRECTION:

So far as here relevant the Act provides:
501.(1)   The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a)subsection (2) applies to the person; or
(b)the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii)…; or
(iii)…; or
(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2)This subsection applies to a person if the Minister:
(a)having regard to:
(i) the person's past criminal conduct; or
            (ii) the person's general conduct;
      is satisfied that the person is not of good character; or
(b)   …
(3)   The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
499.   (1)   A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.
(2)   Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(3)…

The Minister has given a General Direction in writing in which it is stated inter alia:
When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour. (T4, p108).

The Direction details matters regarded by the Government as reflecting significant concerns in the community about the character and conduct of non-citizens. Decision-makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. So far as they are relevant to the present matter the concerns include:

3.…
· where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;
· where a non-citizen has been convicted of offences, or the non citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;
…
4.Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501. (T4, p108).

Pursuant to the provisions of the legislation the Tribunal is to decide whether it is satisfied having regard to the Applicant's past criminal conduct, that he is not of good character. If so satisfied, the Tribunal does nevertheless have a residual discretion not to cancel the visa.
Interpretation of section 501 of the Act is assisted by Migration Series Instruction No. 164 dated 22 April 1997 ("the Instructions") (T5). Whilst the Instructions specify that they are to guide the granting or otherwise of a visa, they can also be used to assist the making of an appropriate decision as to whether a visa should or should not be cancelled. Thus unless the Tribunal considers otherwise and there are cogent reasons to the contrary, the guidelines should be utilised in reaching a decision in a matter such as the present (see Hohepa v Minister for Immigration and Multicultural Affairs [1999] AATA 210, Rice v Minister for Immigration and Multicultural Affairs [1998] AATA 13034).
A decision as to whether a person is not of good character is to be arrived at after considering the whole of the relevant evidence. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 and Baker v Minister for Immigration, Local Government and Ethnic Affairs (1997) 45 ALD 136 propositions were enunciated in relation to good character and its relevant indicia. Such propositions included:

whether a person is of good character is a question of fact for the Tribunal to determine;
good character refers to the enduring moral qualities of a person, not his or her reputation. It is an objective assessment that is to be made rather than one according to subjective public opinion;
conduct is a useful indicator of character. A person may be judged to be not of good character on the basis of criminal conduct, or general conduct, or a combination of the both.

More specifically, the Migration Series Instruction in paragraph 9.6.1.4 provides that:
A finding that a person is not of good character may be justified, in the absence of any mitigating factors, if the person:

has at any time been convicted of a crime and sentenced to death, or to imprisonment for life or to a period of not less than 1 year; (T4, p134).

As already mentioned, there is a discretion vested in the decision-maker. In the present matter the Applicant has a child born of his relationship with Miss Patricia Waddell. The best interests of this child are to be taken into account in reaching an appropriate decision as a primary consideration, this in the assessment of whether the discretion not to cancel the visa should be exercised in the Applicant's favour. There are of course other factors which will be detailed in these reasons which also bear upon the exercise of the discretion.
CHRONOLOGY OF EVENTS:
The following is a chronology of major events in the Applicant's life:
1963 1967 1974 1981 1984 1985 1986 1989 1991 1993 1996 1997 1998 1999 2000 8 September 3 November 9 October 12 December March 24 March 9 June 2 August 20 May February 31 January 9 September 21 October 13 January 9 March May 12 November 12 December 18 January 20 January 25 June 20 October 2 June Birth of the Applicant in Northern Ireland. Applicant's parents separate in Northern Ireland, the Applicant being left with his sisters in the care of grandparents. The Applicant arrives in Australia with his father and sisters. Applicant convicted of breaking and entering a dwelling and stealing. Applicant meets Miss Waddell De facto relationship between Applicant and Miss Waddell commences. Raymond Pollack, the child of the Applicant and Miss Waddell is born. The Applicant commits offences of assault and indecent assault. The Applicant is charged with the above offences. The Applicant commits offences of break, enter and steal, threatening actual bodily harm by an offensive weapon with intent to have sexual intercourse and sexual intercourse without consent. Applicant is convicted of the March and June offences and sentenced. Applicant appeals against August 1991 sentence. The Court of Criminal Appeal imposes a minimum term of 7 years imprisonment with an additional term of 3 years and 3 months in respect of the June offences. The sentence for the March offences remained as it was. Applicant forms relationship with a Ms T Knight whilst he is in prison. Cessnock Correctional Centre Case Officer Report. Report of Mr Alex Jenkins, Psychologist. Report of Ms C Bebbington, Psychologist. Further report of Ms C Bebbington. Report Ms L Codling, Drug and Alcohol Counsellor Respondent notifies the Applicant that he is liable for visa cancellation under section 501. Relationship between the Applicant and Ms Knight ceases. Further report of Ms C Bebbington. Probation and Parole Report. The Respondent cancels the Applicant's visa. Applicant applies for review to the AAT. Applicant commences participation in Custody Based Intensive Treatment Program (CUBIT). Report of Ms P Nolan, Psychologist. Applicant completes CUBIT program.

THE FACTUAL SITUATION:

The material before the Tribunal is such as to enable it to find the following as the relevant factual situation.
The Applicant was born in Northern Ireland on 8 September 1963. On 3 November 1974, and at the age of 11 years, he migrated to Australia with his father and two sisters.
The Applicant's parents had separated when he was three or four years of age and thereafter until he travelled to Australia he lived with his sisters at the home of his grandparents, an uncle and aunt. It is maintained that during this time he was sexually and physically abused "the children being raised under a reign of terror" (T2, page 16). Seemingly the children were not allowed to speak to one another and they were frequently beaten. The Applicant has a loss of hearing in one ear and partial deafness in the other, which is said to be attributable to the abuse he experienced at this time.
Following his arrival in Australia, he completed his primary schooling and to second form at Ashfield Boys' High School. He says his father was a heavy drinker of alcohol and the Applicant frequently did not attend school. On 30 April 1978 he travelled to Ireland with his father, there working on an uncle's farm, returning to Australia on 27 April 1981. Thereafter he held various jobs including that of a chauffeur for three years and a labourer in a brick factory for about 18 months. For periods of time he was in receipt of unemployment benefits.
The Applicant met Raymond's mother, Miss Waddell, in about 1984 and commenced living with her in a de facto relationship shortly thereafter. Raymond was born on 12 December 1986. At the time of his arrest for the offences in 1989 Miss Waddell intended leaving him, this primary on account of his continuing alcohol abuse and late nights. In about December 1998 the Applicant stated to a Parole Officer that:
… in the two years leading up to his offences, he had been drunk for 'two years straight. It would have been strange to be sober.' Despite his partner's [Miss Waddell's] protestations, he maintained he was not an alcoholic and could stop drinking anytime. He acknowledges now that he was abusing alcohol, 'easily consuming about a flagon of wine, a bottle of Ouzo and numerous drinks of beer each day.' (T2, page 101)

In the course of his involvement in the CUBIT program, the Applicant stated to the psychologist, a Mr D Bright, that he:
"… used a variety of other drugs including cannabis, heroin, amphetamines, LSD, and crack. He reported that he sniffed glue and lighter fluid as a teenager. He commenced using cannabis at age 12 and his use increased to daily from age 14 to 25. He used heroin 'socially' until he came to gaol when his use increased to around five shots a day between 1992 and 1998. He was still using in the weeks prior to being transferred into the CUBIT programme and stated that during his first weeks in CUBIT he was withdrawing from heroin. Mr Pollock started using amphetamines at age 14 and by the age of 22 he was using them daily.
Mr Pollock stated that he financed his drug use through crime (eg. Armed robberies, mugging people, break and enters). (Exhibit 1, page 4)

And further to the psychologist during treatment:

"… Mr Pollock gave a detailed description of his offences. He provided a clear picture of the severity of his offences which closely correlated with the official versions. He disclosed his use of deviant sexual fantasy as a precursor to offending. Mr Pollock also disclosed two sexual offences for which had (sic) never been charged nor convicted. In his initial disclosure, Mr Pollock disclosed a sexual assault perpetrated three months prior to the first assault he was actually charged with. In this offence, he forced an intoxicated female person to have sexual intercourse him (sic) in a deserted lane way. In an interview conducted at the completion of treatment (22/5/00) Mr Pollock disclosed a further sexual offence committed when he was 16. After driving a female person to a deserted area he had told her that he would not drive her home unless she had sex with him. He stated that he had previously not conceptualised this as a sexual assault, he realised through treatment that it was an offence." (Exhibit 1, page 5)

Following his arrest and conviction, the Applicant was detained at various locations. He was to be realised on parole in March 1999 but went on the CUBIT program and forewent parole. Of recent date and on account of the cancellation of his visa and potential deportation, he has been detained at the Parramatta Detention Centre.
Whilst serving his term of imprisonment the Applicant has, as he put it, worked in gaol on his offending behaviour, attending courses including those on drug and alcohol use. At the time of the commencement of the hearing, he was involved in a 40 week program, the CUBIT program.
CRIMINAL HISTORY OF THE APPLICANT:
The recorded criminal history of the Applicant is as follows:
15/10/1981        2/8/1991         Glebe Petty Sessions        Sydney District Court Break, enter and steal – two charges - in respect of which charges he was placed on a self recognisance of $500 to be of good behaviour for 3 years.    In respect of the second charge, he was ordered to pay compensation.   1.     Break, enter and steal. 2. Threaten actual bodily harm by offensive weapon with intent to have sexual intercourse. 3.      Sexual intercourse without consent (3 counts).
20/5/1993NSW Court of                  In respect of the latter above 3 offences,
Criminal Appeal     he was initially sentenced to a fixed term of imprisonment of 3 years in respect of the first 2 counts and a minimum term of 6 years and an additional term of 2 years in respect of the other 3 counts. On appeal to the Court of Criminal Appeal, the sentences were quashed and in lieu a minimum term of 7 years and 9 months, with an additional term of 3 years and 3 months was ordered. The sentences were to be served concurrently.

As has already been mentioned, in the course of his participation in the CUBIT program the Applicant disclosed a history of diverse criminal activities. He reported that:
… between the ages of 7 and 12 he engaged in a variety of criminal activities including vandalism, stealing, and hurting animals. He reported that between the ages 13 and 17, he engaged in fire-setting, stealing, vandalism and break and enters. He informed the interviewer that he was rarely caught for these activities and that when he was caught, he was easily able to lie and con his way out of punishments. Mr Pollock reported that as an adult he has engaged in a variety of criminal behaviours for which he has never been charged or convicted including armed robbery, physical assault, drug dealing, car theft, and stealing. (Exhibit 1, page 2)

The Applicant stated in his evidence before the Tribunal that the revealing of his criminal conduct was part of "my dealing with my problem being honest". He admitted to fights when intoxicated, to the use of marijuana and to car theft on three or four occasions. The criminal activities in the later years were in order for him to obtain money for his alcohol and drug abuse. He said that he was "now trying to be as honest with himself as he could be".
Whilst incarcerated, the Applicant has committed misdemeanours and received admonishment. Such conduct include refusing routine urine test, not complying with instructions, making alcohol, behaving in an obscene manner, obstructing a prison officer, failing to attend muster, assaults and abusive language. Of recent time, he has again missed muster and used abusive language (Exhibit 2).
The 1989 Offences:
On 2 August 1991 the Applicant, following upon a plea of guilty, was convicted of the various offences above detailed and sentenced to the terms of imprisonment. On 20 May 1993 the Court of Criminal Appeal quashed the sentences at first instance (reported in R v Pollock (1993) 67 AcrimR 166), the Applicant being then re-sentenced. In the course of its reasons for sentence the Court of Criminal Appeal, in discussing the nature of the offence and other matters, stated as here relevant:
The applicant …. stood for sentence in the District Court in relation to two sets of charges arising out of events occurring in, respectively, March and June 1989. He was found guilty by a jury of assault and of indecent assault of one female complainant in March, and he pleaded guilty to break enter and steal, threaten actual bodily harm by an offensive weapon with intent to have sexual intercourse and three offences of sexual intercourse without consent with another female complainant in June.
…
The facts of the offences do the applicant no credit at all, and it is unnecessary to refer to them in detail. The March offences arose when the applicant entered the first female complainant's flat at night, lay on top of her in bed, placed his hand over her nose and mouth and rubbed his genitals against her buttock. In the struggle which ensued, the applicant pulled the complainant's hair and he struck her about the face.
When on bail for those offences, the applicant broke and entered the home of the second female complainant at night, held a knife against her neck, told her to be quiet or she would be hurt, undressed her and had sexual intercourse with her. Still holding the knife to her neck, he fondled her vagina, forced her to fellate him and subsequently he had sexual intercourse with her twice more. He then stole $500 in cash and left, after saying that he would return to kill her if she told the police what had happened. I should stress that I have left out much of the unpleasant detail of what occurred.
…
The judge accepted that the applicant was well affected by alcohol at the time of each set of offences, but he found that the applicant had known just what he was doing. …
… These were very grave offences. The behaviour of the applicant was disgusting and depraved. Whatever his own brutal upbringing may have been, it cannot excuse or lessen the effect of the brutal manner in which he satisfied either his anger or his own sexual lust at the expense of this unfortunate victim, whom he picked at random whilst asleep at night. Having selected her house to rob, and having disturbed her, he treated her in a disgraceful way. … (T2, pages 59, 60, 61, 63)

The Applicant, in the course of his cross-examination before the Tribunal described the June 1989 offence by saying that he broke into the house with the intent to steal a television set and video. He needed money for amphetamines and marijuana. Whilst going through the house he saw a lady in a bedroom on her own and then with a knife in his hand, engaged in forcible intercourse three times. He said that he formed the intent to rape about five minutes after he first saw the lady in the bedroom, the rape was a fantasy that he had had for some time and he decided to let the fantasy "play through". When he committed the act he knew that it was wrong but then had to ensure that he would not get caught and so threatened the victim. He said that later he hated himself for what he had done because he had been a victim himself. He knew that it would affect the victim for the rest of her life and "empathised with her". He said that he had conflict within himself.
The offences committed by the Applicant are and were abhorrent to the Australian community. Miss Waddell described her view of the offences as "it was a horrible, horrible thing that he did" (T2, page 72), "horrible and horrific" (T2, page 75).
The Victims of the Applicant's Criminal Conduct:
The impact on the Applicant's victims was severe. It was stated by the Court of Criminal Appeal that:
The immediate and lasting consequences to the second complainant have been severe. She was still receiving psychiatric assistance at the time of sentencing over two years later. She was having nightmares, and she suffered persistent fear (close to terror) that her attacker would return. She became obsessed with the security of her house, and she slept with a hammer under her pillow for protection. She was initially concerned that she had caught a sexually transmitted disease from the applicant, particularly as he had ejaculated inside her vagina. After increasing tensions with her de facto husband as a result of these offences, they separated. The applicant's pleas of guilty did, however, mean that she did not have to appear in court or to give evidence.

There was no direct evidence concerning the consequences to the first complainant, but it appears that not only did she move away from the flat where she was assaulted but she moved interstate. (T2, pages 60-61)

The Applicant, in his oral evidence before the Tribunal, said that he fully accepted responsibility for what he had done and expressed sympathy for the victims.
LIKELIHOOD OF RE-OFFENDING:
The Applicant does not deny the possibility of his re-offending but describes it as low to moderate. He said in the course of his evidence:
I can't say that I never will do it, only that I am working on it … there a lot of things still to work on … I still have a problem with anger … I'm not as young as I was. I have learnt to deal with things that caused me to offend in the past.

The Respondent, as earlier mentioned, maintains that the risk of recidivism remains high. The assessment to be made by the Tribunal with regard to the character of the Applicant, is an objective one. In its reasons for decision the Court of Criminal Appeal said:
The psychiatric opinion was that the applicant suffered from a schizoid personality disorder (but no psychiatric disorder as such), with no capacity to form proper contacts with other people – based apparently on a deprived and brutal upbringing. The applicant was said to be a good prospect for rehabilitation, and he has been taking steps in gaol to deal with an alcohol problem. (T2, page 61)

However, in aid of reaching its decision evidence was tendered before the Tribunal from various persons in relation to this issue. The evidence was from both lay and professional witnesses, and extended over the period of the Applicant's incarceration.
In June 1990 a pre-sentence report was prepared by the Probation and Parole Service in which it was stated that the Applicant:
… appears to have 'blocked out' the circumstances of this offence. This is a matter of great concern and it is to be hoped that in time with professional assistance Mr. Pollock will fully acknowledge what he has done and begin to address the implications for both himself and the victim. (T2, page 87)

In September 1997 Mr A Jenkins, an internal psychologist with the Silverwater Parole Unit, stated that whilst admitting his offending behaviour, the Applicant did not admit that he planned the offences in any way nor could the Applicant identify an offending cycle or that he posed any future risk of sexual re-offending. The psychologist noted a number of factors reflecting positively on the Applicant that would tend to indicate a lower risk of re-offending behaviour. Such factors were the Applicant's endeavour to address his drinking behaviour, a displayed ability to sustain a long term adult relationship and an increasing willingness to disclose information about his offences and take an increasing responsibility for them. The psychologist concluded his report by stating:
Until he can identify the pattern of thoughts, fantasies and actions that lead up to his offences and can outline effective and plausible strategies to deal with these triggers it must be acknowledged that he does still present as at a high risk of sexual re-offending. (T2, page 90)

Ms C Bebbington, Psychologist, prepared reports in October 1997 and November 1998. In the first of her reports she noted the observation made by Mr Jenkins as to the Applicant's risk of re-offending and stated that, to her, the Applicant:
… expressed remorse for his offending behaviour and the traumas he caused his victims. He made no attempt to minimise his offending behaviour and appears to accept full responsibility. He appeared to demonstrate a realistic attitude concerning the ramifications of his behaviour and appears motivated to pursue psychological counselling. He also expresses a strong conviction to abstain from alcohol and I understand that he has completed the relevant programmes. (T2, page 93)

Ms Bebbington then concluded:

Based on my contact with Mr Pollock, he appears to be making good progress in addressing his offending behaviour. Continued progress in this manner suggests a lowered risk of re-offending. (T2, page 93)

In her November 1998 report, after reiterating some of the matters referred to earlier, Ms Bebbington stated:

Mr Pollock's risk level of re-offending sexually remains high. He presents as unamenable to counselling at this stage, and therefore, further counselling will not take place. (T12)

Also in November 1998, Ms N Sutton, Therapeutic Manager, Forensic Psychology Services – City Branch with the Department of Corrective Services, having reviewed the relevant material, stated that she:
would like to emphasize that the information available to me suggests that Mr. Pollock falls into the high risk category for sexual re-offending, particularly given his unwillingness to address offending issues. (T14)

In December of that year, Mr T Harsas, a Parole Officer, in a Pre Release Report, stated:

A perusal of Mr Pollock's case management file reveals scattered references to the inmate acknowledging his past abuse of alcohol and his comments that he has no desire to use alcohol in the future. However, during interviews he in fact displayed a degree of ambivalence in this regard. Whilst stating on several occasions that he had no interest in consuming alcohol, he also expressed curiosity over what it would be like to 'just have a drink'.
…
Mr Pollock has accessed psychological and participated in limited offence specific counselling. His awareness seemed to be focussed solely on the instances of his offences with him showing no understanding of the broader ramifications of his sexual behaviours. He was of the firm view that he no longer had a problem and did not need further treatment. As a result he became resistant to further counselling to address the dynamics of his offending behaviour. He has subsequently failed to make the necessary cognitive changes that indicate he has genuinely addressed his offending behaviour.
…
… It was also highlighted that he fell into the high risk category for sexual re-offending but that it was worthwhile to encourage him to participate in the CUBIT (Custody Based Intensive Treatment) program. …
Mr Pollock presents as a co-operative person who is eager to please yet noticeably circumspect, assertive and aware of his rights. Rather than volunteering information he provides details when questioned. He also appears to be measured in what he communicates. As such it is difficult to gauge the depth and quality of his reflections concerning his offending behaviour.
…
Notwithstanding Mr Pollock's overall positive response to imprisonment, his limited involvement in addressing his sex offending behaviour precludes him from any recommendation for release to parole at this stage, as he remains a high risk of re-offending. … (T2, pages 100 and 102)

During the currency of the hearing, the Applicant consulted Miss J Cregan, Psychologist, a report being prepared for the benefit of the Tribunal. In that report dated 30 January 2000, Ms Cregan noted that the Applicant had relinquished his minimum security privileges in order to participate in the CUBIT program. She noted that:
The CUBIT program is a residential therapeutic community run by the NSW Department of Corrective Services to treat sex offenders. It aims to develop participants' insight into the patterns of internal and external antecedents to their offending, and to develop the appropriate personal skills to recognise and avoid re-offending. Upon release from prison, graduates of the CUBIT program are referred to CUBAC, a community-based program which continues their treatment and is designed to prevent relapse offending by overseeing participants' transition back into society. Keith initiated contact with the CUBAC arm of the program some time before he became aware of CUBIT, and requested to join the program upon his release from prison. (Exhibit R, page 4)

In her assessment of the Applicant, Ms Cregan noted that:
… He now presents as a mature, confident man, who was comfortable discussing with me his offence and his insights into the motivations and circumstances that led to it. He attributes the difference in himself to participation in the CUBIT program, where he has gained the conceptual framework he needed to analyse and understand his previous behaviour, recognise his offending patterns, and implement counter measures to prevent re-offending. …
Keith acknowledges the importance of having access to long-term therapy and support in order to maintain and expand upon the gains he has already achieved. He expects his transition from prison to the community to be stressful and difficult after so many years of incarceration. I consider that this is a realistic expectation, and that the steps he is taking to manage the transition are appropriate. Through participation in CUBIT and CUBAC, and with the support of Patricia [Miss Waddell], who will be fully briefed and supported by the program, he is developing strategies and structures that will ensure him the best possible chance of successful readjustment to society, and the lowest possible risk of recidivism. (Exhibit R, page 7)

In her summary and recommendations, Ms Cregan stated that the Applicant had:

… demonstrated a high level of motivation for rehabilitation, evidenced by his initiating contact with the post-release CUBAC program. After interviewing him, I am of the opinion that he has developed sound insight into the complexity of his offending and its triggers, is aware of his personal susceptibilities and the need for interpersonal contact and support, and is capable of readjusting to society in context of the support structures he is setting up for himself. If he continues with his therapeutic plan, I consider him to be an extremely low risk in terms of further offending (Exhibit R, pages 8-9)

The Applicant participated in the CUBIT program up until 2 June 2000. In a final treatment report of 14 June 2000, Mr David Bright, Psychologist, whose report was also under the hand of Ms Natalie Mamone, Acting Therapeutic Manager and Acting Senior Psychologist with CUBIT Malabar Special Programs Centre, described the CUBIT program as a prison-based high intensity therapy for men who have sexually abused adults, children or both. The program is designed to help offenders to work on changing the thinking, attitudes and feelings which led to their offending behaviour. With specific reference to his treatment progress, Mr Bright noted that the Applicant:
… recognises that his sexual offending behaviour is the culmination of a pattern of thoughts, feelings and behaviours. He recognises that when [he] was faced with environmental stressors (e.g. financial problems, relationship pressures, work issues), he engaged in negative and pessimistic thinking about himself. Mr Pollock identified that in order to cope with the stressors and with associated feelings of low self worth, he blamed women for his difficulties and became preoccupied with revenge oriented sexual fantasies. When a vulnerable victim became accessible, or when Mr Pollock engineered a situation so that a vulnerable victim became available, he committed a sexual offence.
In treatment Mr Pollock addressed cognitive distortions which justified and minimised his offending. … Over the course of treatment Mr Pollock has experienced some difficulty in generating convincing challenges to these…He will need to continue addressing these issues and challenging these distortions if these gains are to be maintained.
… On a number of occasions in the latter part of treatment, Mr Pollock displayed a much improved ability to cope with difficult interpersonal situations in a constructive manner. (Exhibit 1, pages 5-6)

Mr Bright noted that the Applicant participated very well throughout the treatment. He had addressed treatment issues but:
… will require further intervention regarding self-image and self esteem
… he needs ongoing practice in expressing and dealing more constructively with emotional states. (Exhibit 1, page 6)

With regard to the risk of re-offending, Mr Bright noted that:

Risk factors for sexual recidivism could be static or dynamic. Static factors are unchangeable and usually include historical factors such as criminal history. Dynamic factors are changeable and are often amenable to treatment …
Mr Pollock's risk of sexually reoffending was assessed using an actuarial risk assessment instrument, … [which] employs static (unchangeable) risk factors to specifically calculate the risk of sexually reoffending. On the basis of this instrument, Mr Pollock's actuarial risk of sexual reoffending is in the moderate-high range.
Currently, taking into account that Mr Pollock has recognised and addressed the dynamic risk factors that led to offending [substance abuse, anger and hostility issues, attitudes and beliefs supportive of rape, and inappropriate coping strategies], his level of risk of sexually reoffending is in the moderate range. (Exhibit 1, page 7)

In his conclusions and recommendations Mr Bright noted:

However his risk of sexually reoffending will substantially increase if [he] returns to substance abuse, attitudes supportive of rape, or inappropriate ways of coping with negative mood (including anger).
It is recommended that Mr Pollock be transferred to the transition programme at Kirkonnel Correctional Centre so that he can attend maintenance groups. However, given that Mr Pollock has clearly expressed an unwillingness to be transferred to Kirkonnel, transfer to an alternative institution where maintenance therapy can be provided by a suitably qualified psychologist is indicated. This will assist him to maintain the gains he has made in the CUBIT programme, to further refine his relapse prevention plan, and to continue implementing the strategies and skills he has developed and practised through his participation in CUBIT. Upon his release, it is recommended that Mr Pollock attend community based maintenance counselling. (Exhibit 1, pages 7-8)

In her written statement, Miss Waddell says that she believes the Applicant should be allowed to stay in Australia:
… he will not choose to go down the path of crime again, his desire to lead a normal community life is his formost goal. I know he is sorry for his past crimes and I also know he is sorry for missing the day to day aspects of our son's life, as [K]eith has watched Raymond grow from behind prison walls. (Exhibit B)

In her oral evidence, Miss Waddell stated or endorsed her previous belief that the Applicant would not re-offend "he changed a lot in the last 10 years. What the psychologists say about re-offending I do not believe to be true, it is only their opinion".

The Reverend Peter Baines, Chaplain at the Silverwater Correctional Centre, provided a written statement in support of the Applicant. He stated that the Applicant was a very different person to what he was when he began his sentence, that he had dealt with his aggression and has sought to keep himself to himself as much as possible.
Finally, in this regard the Applicant spoke of his own state of mind and his having been a loner all of his life. He spoke of the fantasies that he had earlier experienced and the work he had done in gaol on seeking to understand the factors that had motivated his conduct. He said the best way he could show that he had changed was for him to remain on the programs that he had commenced. He spoke of his taking issue with some of the statements contained in the reports of psychologists and particularly that of Ms Bebbington with whom it would seem he had had a disagreement. He contended that Ms Bebbington had changed her attitude to his re-offending after the disagreement. At this time he says that he has a positive outlook for himself and that he will continue with the current program, after his release from gaol, for as long as it is considered necessary. He said "I am doing the program by choice, I will decide whether to continue". When cross-examined as to the negative aspects relating to him, the Applicant mentioned anger which he said still existed as a problem. He was asked about his alcohol abuse and confirmed that on release he would like to "have a drink" in order to find out what his reaction would be – "if I like it then I will have to do more work". He said that he does not "currently have a need but in gaol it is not available. When I am released then I will have access to alcohol" and he acknowledged that the risk "will be high". He said, however, that "in my mind I know that it is a low risk." He said that at one time he had a bad sense of distorted reality but now believes "it is pretty good, I am in touch with reality, I've got the right prospective, I know how to behave in the community, I know my place in society".
The Applicant in the course of his cross-examination, said that he is of the opinion that his risk of re-offending is low to moderate. He cannot say that he "never will do anything like the past, only work on it". That is why "I will still have to do the community program, there a lot of things still to work on". He noted that he still has a problem with anger but he has learnt to deal with "things that caused me to offend in the past".
The Tribunal is mindful of the confidence expressed by the Applicant in his ability to assess problem situations when they arise and endeavour to work on them. It notes his own assessment of the likelihood of re-offending and respects the honesty with which he assessed himself in this regard. The Tribunal is also mindful of the opinions stated by the Reverend Baines and Miss Waddell. However, it cannot ignore the considered assessments of the various psychologists and others who have expressed objective appreciations of the likelihood of the Applicant re-offending, committing offences the like of which he committed in the past. It is apparent that some of the factors which motivated his earlier conduct such as consumption of alcohol may not have been abated.
The Tribunal, on the whole of the evidence before it, assesses the likelihood of re-offending and the possibility of recidivism, as did Mr Bright, as being in the moderate range.
RELATIONSHIP BETWEEN THE APPLICANT AND HIS SON AND THE EFFECT UPON THE SON OF A REMOVAL:
The best interests of Raymond are a primary consideration in this application. His mother, Miss Waddell, considers that the Applicant has missed out on 10 years of his son's life and that Raymond would be devastated if his father could no longer live in Australia. She has no difficulty with the father having unrestricted access to the boy.
Miss Waddell has ensured, as best she was able, to maintain contact between father and son over the years of his penal servitude. She has taken Raymond on visits to gaol, effected telephone conversations and caused letters to be written. She said that Raymond has been waiting for his father "to come home and catch up on all things they have missed out on doing together" (T2, page 75). In her written statement Miss Waddell stated:
I strongly believe if Keith is deported this will affect Raymond in every aspect of his well being mentally, phsically (sic) as well as psychologically, in turn this will hurt and scar Raymond for many years to come, I prey (sic) this not to be the case as [R]aymond is only 12 years old.
Secondly; God forbid anything should happen to me, but hypothetically speaking if something did and I was unable to care for Raymond myself I have no one, I repeat NO-ONE to whom I could entrust the care of our son to. I could not and would not send Raymond over to Northern Ireland to live and be raised in a place of terror and violence.
Thirdly; I beleive (sic) Raymond's place is with both parent's (sic) not just one, as I've stated they love each other dearly and I cannot emphasize this enough. …
Keith's need to be with his son is paramount, this is only exceeded by Raymond's need to be with his father. If I did not truly believe this I would not be willing to give Keith full access to our son after his release.

Miss Waddell describes the Applicant as a "good person" and says that the son has a right to his two parents, that she never had a father and that it is very important that Raymond have one.

The Applicant maintains that he needs to stay in Australia with his son, that he has a life in Australia, a family, a job, love and a support network "of which I could not ask for better". He says that Raymond and his mother are important to him:
Raymond is my life he is my blood, it would kill me to be sent away from him and I know Raymond feels the same way toward me. We have become even closer since I have been on the day leave programe (sic) from gaol, Raymond dose (sic) not leave me for one minute of the day, same as my weekend leave. (Exhibit A)

In his oral evidence the Applicant spoke of visits from his son to the gaol, of his spending time with him on day release and the activities in which he engaged at that time. He described Raymond as intelligent, not being afraid to show his emotions and eager to communicate. The Reverend Baines, in his statement, spoke of the Applicant as being a concerned father and of the close boding the Applicant has established with his son. Raymond wrote a note to the Respondent in which he said:

I don't know what I would do if he was sent away from me again. I know it would break my heart if I could never see my dad again and that hurts just thinking about it. So please don't send my daddy away from me.

An objective appraisal is seen in the report of Ms P Nolan, psychologist, of 20 October 1999 in which she speaks of Raymond appearing to be of average intelligence and described at school as a good student. The boy presented to her:
… as a healthy child who was easy to engage and very polite. He became teary when discussing the deportation of his father.
… Raymond appears to be very fond of his father and related with excitement the times of contact. On day release he said they played football, computer games and had water fights. (Exhibit I, page 2)

Ms Nolan continued her report by saying:

Throughout reports regarding Keith Pollock it is stated that Raymond "would be devastated" if his father were to be deported. Assessment of Raymond's view of his father would tend to confirm this statement. Raymond has an attachment to his father and sees him in positive terms. It appears that he has had regular contact in which to maintain this attachment over the ten years of Keith's incarceration. Raymond describes regular and positive playful interchanges. His affect whilst describing these interactions is excited and happy. The relationship from the father's side is less clear. Given the comments made regarding his lack of capacity to connect with others it is likely that the relationship has been driven by the child's natural affection and a desire seen in almost all children to connect with their parents regardless of the treatment they receive.
Paradoxically it has probably been the safety afforded by Keith's incarceration and the particular structure emerging from access arrangements that has allowed such a positive relationship to develop between father and son. Had Keith been living at home during this period Raymond would have been more exposed to the pathological elements of Keith's makeup. Raymond does not appear to have the same difficulties as his father. He displays warmth and empathy for others. He is interested in human interaction and has not developed violent traits. The influence of Raymond's mother and the relationship with her has undoubtedly given the boy a much more sustaining environment than his father seemed to have had.
Raymond is entering puberty and is in need of an appropriate male role model, particularly in the way to channel aggression and the proper way to relate to women. Although Keith has provided love and attention for his son it is unlikely that he is capable of this other task. It will be a difficult period for Raymond to negotiate whether his father is present or not. If Keith is deported the child will grieve and feel the separation keenly. It is not easy to transfer such affections to another male parental figure. On the other hand the relationship has probably reached its limits in terms of meeting developmental needs for Raymond.
Although Raymond minimises the responsibility of his father for his crimes by saying he was drunk at the time, he could easily be assisted to come to a more complex view. Patricia's view seems to be less idealising of Keith, though they both want him to stay and perhaps would have difficulty accepting the high risk of recidivism indicated in reports regarding Keith. Raymond's idealised view of his father is quite normal given the makeup of a child and the type of restricted relationship they have had. I see no danger of Raymond following the same path as his father but would strongly recommend that other male influences be arranged to assist Raymond's journey through adolescence. (Exhibit I, pages 2-3)

In the summary to her report Ms Nolan expresses the opinion that:

There would be negative effects should this contact [between father and son] be severed in which case the boy would need some support with the grief that will ensue. Fortunately he is old enough to make some sense of the events with such assistance. If Keith were allowed to stay in Australia then it would be possible for the two to maintain their current relationship. However, it is unlikely that Keith is equipped to bring the boy through adolescence and provide appropriate containment for the normal aggression that will arise nor the sort of role model needed. In fact Raymond may be more advanced in terms of empathy and morality than his father. (Exhibit I, page 3)

Ms Nolan noted that at present there did not seem to be a male in Raymond's life who could provide this intensive support. She noted that if the Applicant be allowed to remain in Australia some support and protection for Raymond would need to be provided:
It should be noted that Keith is still considered to have difficulties connecting to others despite intervention. (Exhibit I, page 4)

Her recommendation was that:

… consideration be given to providing an appropriate male role model for Raymond as well as assistance in coming to terms with Keith's behaviour despite the boy's obvious affection for him. This would be required whether Keith is deported or not and would most likely be met by a referral to a male therapist. (Exhibit I, page 4)

In her oral evidence Ms Nolan expanded upon the views expressed in her report but emphasised that the relationship between father and son was "near its limits". The Applicant lacked interaction in a community and lacked experience in the father/son relationship. The Applicant was not likely to be able to accommodate the needs of the son as he approached puberty, the Applicant needing repeated experience of acting in a particular way in order to provide appropriate guidance. Ms Nolan was of the view that it was probably beyond the Applicant to provide a role model for his son. She thought that the Applicant would have limitations on his relevant capacity because of his background and the long period of time that he had been in gaol. It would not be possible to create a situation where the committing of the offences and the incarceration could be ignored. She felt that the son would be in need of male guidance at this time, was not confident that the Applicant could provide it, "maybe in five or six years time but then it would be too late". She noted that Miss Waddell had shaped her son's character and that the Applicant's part in this regard was quite limited. She saw the father "more as a playmate and not involved in the other aspects of parenting".
Needless to say the Applicant stated in the course of his evidence that he totally disagreed with Ms Nolan's statement that he was not an appropriate father figure. He said that he had a lot to teach his son and could bring him up to be the sort of person that he was not. He spoke of the contact that he has had with him over the years. Miss Waddell also "totally disagreed" with Ms Nolan's observation that the Applicant was not able to favourably influence the needs of Raymond. She said that she could "not ask for a better person to father her son". The son, she said, "did not need a male therapist, he needs a father. If I did not believe he would be a good person as a father, I would not be here fighting for him to remain in Australia".
Ms Cregan, the psychologist consulted by the Applicant, in her January 2000 report noted that Miss Waddell expected the Applicant to take a more directive role in co-parenting when circumstances permit that to occur and that she fully supported the relationship between father and son. Ms Cregan noted that Raymond said:
… his father is fun, exciting, truthful, fair, funny, middle-aged, and bald. He has a great love for his father, and misses having him home on day leaves … (Exhibit R, page 6)

Ms Cregan noted that:

Raymond presents as a well adjusted, secure child, so it would appear that, at least up to the present time, [Ms Waddell] and [the Applicant] have been able to provide a sufficiently positive family structure to protect Raymond from the risks inherent in the separation of imprisonment. While he has not escaped all the social problems, such as stigma-related teasing by peers, he has been able to turn to his parents for support and advice, and has managed to overcome the problem in a mature and rational way.
He has never been deceived about the fact that his father is in prison and when [Ms Waddell] and [the Applicant, together, considered he was mature enough at eleven years old to cope with the knowledge, they told him about the nature of his father's offence and discussed the consequences and Keith's regret and remorse. Raymond displayed some discomfort when talking about this issue in the interview, but it may be considered a measure of the strength of their relationship that he continues to love and admire his father, while demonstrating aversion for his actions. (Exhibit R, page 6)

Ms Cregan further noted that "Raymond is the most important person in Keith's life". It was her impression that "both parents are dedicated to their son, and that they approach his welfare and upbringing as a mutual responsibility". She stressed that because Raymond had had some access to his father through prison visiting and day leave, the separation experienced in the past is relatively minor compared with that which deportation would entail. Ms Cregan noted that the effect on the mother:

… of deporting Keith would be to shift the entire burden of parenting on to her, at a most vulnerable period in their son's development. It could be expected to destabilise the co-parenting structures which she has striven to set in place and maintain throughout Keith's incarceration, making her role even more difficult if Raymond were to experience emotional or behavioural problems in response to his father's absence from his life.
As Raymond enters adolescence, he is in a peak risk period for negative effects of enforced separation from his father. Although prisoner parenting is not the ideal situation for a child, he has experienced his father's input for his entire life, and I consider it would be traumatic for him to withdraw this influence at such an important stage in his development. (Exhibit R, page 8)

Ms Cregan recommended that the Applicant:

… be permitted to remain in Australia after he completes his prison sentence, in the interest of his own rehabilitation and, perhaps more importantly, in the interest of his son, Raymond. (Exhibit R, page 9)

APPLICANT'S TIES TO THE AUSTRALIAN COMMUNITY AND RELATIONSHIP WITH OTHER PERSONS:

The Applicant has family ties with the community. His father and two sisters live in Australia but he does not currently maintain a close contact with them. He has the above detailed relationship with his son and has remained on a friendly basis with Miss Waddell.
The Applicant and Miss Waddell (who was born in Australia on 22 February 1965) commenced their relationship in about 1985, it lasting for a period of about five years. There is the one child born of this relationship. Although now merely good friends, Miss Waddell sponsored the Applicant for day leave and for his release on parole. He is able to live in her house, if he be released and not removed from Australia, until he is able to obtain other accommodation.
Nevertheless, the Applicant described Miss Waddell as the closest friend that he has, a person with whom he can discuss problems. She would also give him emotional support if he needed it.
In Northern Ireland he has relations but he says no contacts, no work and a lot of violence. If he is removed from Australia, it is his intention to live in England and not Northern Ireland, this by reason of members of his family being involved in conflict, some of whom were executed by the IRA and, if there, he would he said need to also become involved. Even be it that a sister gave evidence in his application and she had visited him "in the early days of his sentence", the last of such visits was in 1993 or 1994 and the occasion when she attended the hearing was the first the Applicant had seen her since that time. He last saw his father in about 1993.
PROPOSAL OF THE APPLICANT IF HE IS ALLOWED TO REMAIN IN AUSTRALIA OR REMOVED:
The Applicant maintains that he needs to stay in Australia with his son "and family" and says that he will do all he can to better himself so that he can "reach this goal". He maintains that he is of good character and is working hard "on bettering it even more". There was evidence before the Tribunal of a job opportunity being available to the Applicant upon his release and he being able to remain in Australia.
If he should leave Australia and travel to England, he said that he has no certainty of a job, no money and no contacts there. He has written to Prisoners Abroad, an organisation operating from London, and they have said they would provide some assistance but not work.
SUBMISSIONS AND DECISION:

It was submitted by Mr Hurley, on behalf of the Respondent, that the offence committed by the Applicant was "terrible" and that the evidence before the Tribunal was such as to reveal the Applicant as a person not of good character. The Applicant was found guilty of committing assault and indecent assault, in March 1989 he was found guilty of committing breaking, entering and stealing threatening actual bodily harm by an offensive weapon with intent to have sexual intercourse, and three counts of sexual intercourse without consent in June 1999. The Migration Series Instructions states in para 9.6.1.4 that a finding that a person is not of good character may be justified in the absence of any mitigating factors if the person has at any time been convicted of a crime and sentenced to death or to imprisonment for life or to a period of not less than one year. It is not inevitable that a finding would follow a term of imprisonment but this may be so. The Tribunal, having considered the nature of the offences committed by the Applicant, the observations made by the Court of Criminal Appeal, its own appreciation of the circumstances in which the offences took place, the overall criminal history of the Applicant and the admissions made by him, is satisfied that the Applicant is not of good character. The offences committed by him were indeed abhorrent to the Australian community and such as would lead to an expectation by it that such conduct was inconsistent with a right to remain living in this country.
While the Tribunal is satisfied in this regard, it is also required to consider, as a primary consideration to be balanced against the character of the Applicant, the interests of Raymond and the other discretionary matters including the prospect of re-offending, the place of the Applicant in the Australian community, the existence of relatives living in Australia and the hardship that would be experienced by him if he is removed. The Instructions require the decision-maker to consider the welfare of Raymond as a primary consideration in the exercise of its discretion. It is also required that consideration be given to the likely effect upon and result to the Australian community if the Applicant be allowed to remain in this country. The latter includes an assessment as to his likelihood of re-offending.
The considerable body of evidence from psychologists and others detailed earlier indicates a moderate risk of recidivism on the part of the Applicant. It is not necessary to repeat the views expressed by each of them but that contained in the assessment of Mr Bright is the most pertinent to this decision. The moderate risk that he will re-offend, even be it at the conclusion of his involvement with the CUBIT program, is such as to cause concern. The risk is moderate but significant and relevant in the context of the protection of the Australian community.
Other matters for consideration include the hardship that would be experienced by Miss Waddell and the Applicant in the event of his being removed and, the Applicant, if removed, being in a not unfamiliar country but without any family support.
As earlier mentioned, the matter of primary consideration to be weighted against the character of the Applicant is the welfare of Raymond. It is clear that there is a bonding between father and son. It is clear and accepted that Raymond would be distressed if his father was no longer living in Australia and the Applicant likewise. The Tribunal cannot, however, ignore the evidence given by psychologist Ms Nolan, and in particular, Ms Cregan, as to the limited father role that is available to the Applicant if he should be released and remain in Australia. It is not, as the Tribunal sees it, a significant role in the upbringing of Raymond, it is more that of a friend or companion for the teenage boy.
The Applicant maintains that he has worked on his character over the last 11 years. He says that he is doing the best that he can "to reduce the risk of re-offending". In Australia he has people who love him, a job available and his son.
The Tribunal has considered the factors that are relevant to its determination. It has considered the primary matters namely, the Applicant's character and the best interests of the boy, Raymond. It is satisfied that the Applicant is not of good character. It is satisfied that there is a moderate risk of the Applicant re-offending. It is satisfied that Raymond would experience distress and remorse if his father is removed from Australia but is not satisfied that the absence of the Applicant would be detrimental to Raymond's overall advancement emotionally or intellectually. It is not satisfied that the Applicant has played such a role in the upbringing of Raymond that his absence would materially affect his future development. The ties of the Applicant with Australia other than through his son and Miss Waddell are minimal. The Applicant has not made a significant contribution to Australia. He was unemployed for periods of time.
The Tribunal is satisfied that in all the circumstances of this matter, the Applicant should be removed from Australia. Accordingly, the decision under review is affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  26 October 1999 and 23 June 2000
Date of Decision  25 August 2000
Representative for the Applicant    Applicant was self-represented
Advocate for the Respondent        Mr D Hurley,
Department of Immigration and Multicultural Affairs

Actions

Download as PDF Download as Word Document

Citations

Pollock and Department of Immigration and Multicultural Affairs [2000] AATA 746

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574