Porteous and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1054
•21 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1054
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/690
GENERAL ADMINISTRATIVE DIVISION
Re: MARCUS WAYNE PORTEOUS
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: The Hon Howard Olney AM QC, Deputy President
Date:21 October 2005
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) H.W. Olney
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/690
GENERAL ADMINISTRATIVE DIVISION
Re: MARCUS WAYNE PORTEOUS
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DIRECTION [2005] AATA 1054
Tribunal: The Hon Howard Olney AM QC, Deputy President
Date:7 November 2005
Place:Melbourne
Whereas the Tribunal is satisfied that there is an error in the text of the decision of the Tribunal dated 21 October 2005 (№ V2005/690), the Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:
1.in paragraph 11 of the reasons for decision, where the reasons refer to “Ms C. Sim” substitute “Ms C. Sims"; and
2.on the last page of the reasons for decision, under the clerk's certification, where "Mr M. Brereton, Australian Government Solicitor" appears substitute "Ms C. Sims, Clayton Utz".
(sgd) Howard Olney
Deputy President
IMMIGRATION – sub-class 444 special category visa – cancellation of visa - character test – Australian and overseas convictions - interests of family - possibility of recidivism - manner in which Direction 21 should be interpreted - discretion to be applied in favour of applicant
Migration Act 1958 s 501
REASONS FOR DECISION
21 October 2005 The Hon Howard Olney AM QC, Deputy President
1. This is an application by Marcus Wayne Porteous (the applicant) for the review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) to cancel the applicant's sub‑class 444 special category visa. The visa was cancelled pursuant to s 501(2) of the Migration Act 1958 (the Act) on 8 July 2005 on the basis that the applicant did not pass the character test.
2. The applicant conceded that on 25 August 2003 he was sentenced to 18 months imprisonment for property, driving and drug related offences. The applicant also conceded that by reason of such sentence, he is deemed to have "a substantial criminal record" (as defined by s 501(7) of the Act) and accordingly does not pass the character test (s 501(6)(a)).
3. The only matter in issue between the parties is whether, in the circumstances as they exist, it is appropriate that the discretion conferred by s 501(2) should be exercised in favour of the applicant.
THE LEGISLATIVE FRAMEWORK
4. In so far as it is presently relevant, the Act provides as follows:
…
501(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6) 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));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
5. Section 499(1) of the Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
A person or body must comply with a direction under s 499(1) (s 499(2A)).
6. On 23 August 2001 the then Minister for Immigration and Multicultural Affairs gave directions pursuant to s 499 to any person or body having functions or powers under s 501 of the Act (Direction – Visa Refusal and Cancellation under section 501 – No 21 (Direction № 21)). The Direction identifies the considerations to which decision‑makers must have regard when exercising the discretion to decide whether or not a non‑citizen who does not pass the character test should be permitted to enter or remain in Australia.
7. Paragraph 2.3 of Direction № 21states:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Each of these primary considerations together with other relevant considerations will be addressed in detail below.
THE APPLICANT
8. The applicant is a 38 year old New Zealand citizen. He entered Australia on 14 May 1987 and was issued with a sub-class 444 special category visa on 1 September 1994
9. The applicant has a significant record of criminal convictions in both New Zealand and Australia. Between 23 January 1985 and10 February 1987 he was convicted in New Zealand on a total of 15 charges relating mainly to theft, for which he was variously fined and/or placed on probation. His most serious offences, burglary by night, attracted a sentence of six months imprisonment. This was imposed on 1 October 1986 and was his only custodial sentence in New Zealand. His criminal record in Australia is much more substantial and varied, extending to 221 convictions, involving terms of imprisonment totalling 63 months in addition to non‑custodial penalties. He is currently serving his most recent sentence.
10. In 1989 the applicant established a de facto relationship which lasted for about 12 years. There is one child of the union; a 14 year old son who resides with his mother. The applicant has two other children, born respectively in December 2001 and February 2004. The mother of those children, who the applicant describes as his fiancée, is also currently serving a term of imprisonment. The children are in the care of the Department of Human Services.
THE EVIDENCE
11. The application was heard by the Tribunal on 7 October 2005. The applicant was represented by a relative, Mr Daniel Tavo. The respondent was represented by Ms C. Sim, a solicitor from Clayton Utz.
12. Apart from copies of documents referred to in s 501G(2) of the Act, the documentary evidence placed before the Tribunal consisted of:
(a)A written statement signed by Mr Tavo dated 4 October 2005,
entitled Points of Argument for A.A.T Appeal-" Exhibit A1
(b)A document entitled CHARACTER TEST—Answer Sheet
(undated)Exhibit A2
(c)A document entitled "Moreland Hall Participation Advice"
signed by Franca Guglielmino dated 8 September 2005 Exhibit A3
(d)A letter dated 25 September 2005 addressed
"To whom it may concern" signed Denise Melton Exhibit A4
(e)A letter dated 23 September 2005 addressed
"To whom it may concern" signed Glen Derek Highgate Exhibit A5
(f)A letter dated 30 August 2005 to the applicant signed
by his mother and father Exhibit A6
(g)A letter dated 3 October 2005 addressed "To whom it
may concern" signed by Angus MacKinnon Exhibit A7
(h)A letter dated 4 October 2005, addressed to "The Presiding
Judge" and signed by Neil Meyer (Program Director) Exhibit A8
(Each of the foregoing documents (Exhibits A1 to A8) was tendered on behalf of the applicant.)
13. In addition to the s 501G documents (Exhibit R1) the following documents were tendered on behalf of the respondent:
(a)Minister's Facts and Contention dated 5 October 2005 Exhibit R2
(b)A letter dated 27 September 2005 addressed to the
Deputy Registrar of the Tribunal (and copied to Mr Tavo)
From Messrs Clayton Utz (solicitors for the respondent) with13 attachments Exhibit R3
(Reference will be made to the attachments of Exhibit R3 below.)
14. Mr Tavo's written statement (Exhibit A1) contains both assertions of fact and submissions in support of the application. Mr Tavo, who fulfilled the dual role of advocate and witness, is a cousin of the applicant and in recent times shared a prison cell with him for a period of about seven months. His evidence confirms that the applicant has had a drug addiction for many years and that, for the most part, his crimes have been committed to provide money to support his addiction. Despite assertions that he would, on release from prison, adopt a drug-free lifestyle, there is no firm basis to justify that expectation.
15. Exhibit A2 is a list of answers to questions posed in a standard form used by the Department of Immigration and Multicultural and Indigenous Affairs (the Department) in cases where visa cancellation is under consideration. The document in question was prepared by Mr Tavo and the applicant. The information supplied in the document is largely uncontroverted and simply confirms that the applicant's drug addiction has effectively controlled his lifestyle over the period of his residence in Australia. Assertions that his future conduct would be different lack conviction in the light of past failed attempts to reform.
16. Exhibit A3 confirms that, between 1 September 2005 and 8 September 2005, the applicant participated in a course of Relapse Prevention conducted by the Uniting Care Moreland Hall organisation at Port Phillip Prison.
17. Exhibit A4, a letter signed by Denise Melton, confirms that she and the applicant lived together for 12 years after meeting in 1989 and that during that time they had a son who is now 14 years old. Ms Melton also has two other (now adult) children by a previous relationship. In her letter she says:
…
Marcus and I met in 1989 and lived together for the next 12 years. In that time we had a son together, his name is Chase and is now 14 years old. I also had two other children to previous relationships.
Marcus and the children have a good relationship, even though they have been separated for the past 5 years because of his struggles with an addiction. During this time he has kept phone contact and loves these kids dearly. Ashley is now 23 years old and Malia is 28, married and having her first child.
Although Marcus has struggled with life, I have seen many changes in him and believe he is on the road to recovery and wanting to be the Father and person God intended him to be.
He is a man with leadership qualities and channelled the right way can go on to support many young men with similar circumstances to what he has been through.
18. Exhibit A5 is a letter from a Mr Highgate, and) is mainly a description of his own successful struggle to overcome a 30‑year history of drug addiction. Relevantly to the present case, he says:
…
I have known Marcus for some 10 years and during this time, to be honest, I have been closely connected to drugs and crime with him. However, even in that harsh world, the man I have seen has always been as gentle and kind as possible.
With regards to his family, I believe he loved and provided well within the limits of such a life. The issue being he is a man of honour and respect for others who have suffered from long term problems even as I have.
19. Having progressed through this issue myself, I believe the Christian faith Marcus has found to be real to him and I speak of a man seeking to change. For my part I would gladly extend the same programme and fellowship given me to him.
…
We were very sad to hear of the Immigration Department's decision. This will effectively end your relationship with both Wendy and your relationship with Titan and Daisiah, as Wendy will not be able to come here with her record. With your record you would be unlikely to gain custody. You will not be able to re‑enter Australia in the near future if at all ever. Even if you did gain custody, or should you come back here we will not be able to support you financially or otherwise – a lot of time has passed and we both have very responsible jobs and standing in the community and the choices you have made in life i.e. living on the other side of the law and morality definitely would not fit in here.
I'm really depressed having to put our situation so bluntly, we would love to have had more to do with you and your families over the years, particularly Mum with regard to the grandchildren. In that way it's a pity w are not living closer to Melbourne.
My thought is that you must do everything humanly possible to stay in Australia with your family.
If you were to start living cleanly, honestly and with a degree of integrity, we would endeavour to help as much as possible. You really need to have thorough rehabilitation in order for you to have respect for yourself and respect accorded to you by your families and your peers.
Even if you both are able to stay in Australia and you change your life around, we rather fear that you will have your work cut out with Wendy. Her track record is one of severe addiction and instability. I did get to meet her by the way, and she is no doubt a lot of fun, but very immature and irresponsible.
Your main priority now is to get yourself sorted out and work towards being a good father to your three children.
(The Wendy referred to is the applicant's fiancée and mother of his two younger children.) The solicitor for the respondent had sought to have one or other of the parents made available for cross‑examination by telephone, but this did not occur. It was said that the applicant's mother was seriously ill and that his father was unavailable.
20. Exhibit A7 is a letter from a Mr MacKinnon. It simply states that the applicant was at some time employed by him on a casual basis as a furniture removalist's assistant over a period of several months. He was unable to give any dates as his records were destroyed in a storm.
21. Exhibit A8 is a letter dated 4 October 2005, addressed to “the Presiding Judge” and signed by Neil Mayer (Program Director) advising that the applicant had been placed on the waiting list for entry into the Teen Challenge residential rehabilitation program and that a bed will be available for him during the month of November 2005.
22. Mr Tavo and the applicant gave oral evidence and were cross‑examined by the respondent's solicitor.
23. Document G3 in Exhibit R1 is a copy of a letter dated 21 December 1994 addressed to the applicant, from the State Director of the Department of Immigration and Ethnic Affairs (the DIEA), which is entitled "Warning of liability under section 200 of the Migration Act 1958". The opening paragraphs of this letter state:
This letter is to confirm the warning administered to you today, in relation to your convictions for Enter with Intent, Theft (2 counts), Theft of a Motor Car (2 counts), Go Equipped to Steal/Cheat (2 counts) and Intentionally Damage Property, at the Prahran Magistrates Court on 30 August 1990 which rendered you liable to deportation from Australia pursuant to section 200 of the Migration Act 1958.
The delegate of the Minister for Immigration and Ethnic Affairs has decided on this occasion not to order your deportation from Australia on the basis of these convictions, nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Most of the documents annexed to the respondent's Exhibit R3 relate to the circumstances of this warning.)
24. The applicant's Criminal History Record (G4 Exhibit R1) indicates that, since receiving the warning contained in the DIEA'S letter, the applicant has been convicted of 128 offences.
25. By letter dated 7 December 2004, headed "Further Notice of Intention to Consider cancellation of visa under subsection 501(2) of the Migration Act 1958", addressed to the applicant, the Department stated:
You are currently the holder of a subclass 444 Special Category visa. This visa is currently your sole authority to travel to and enter Australia. You were notified on 12 August 1994 that this visa may be liable to be cancelled under section 501 of the Migration Act 1958 (the Act).
Because of your convictions at the Ringwood Magistrates Court on 25/08/2003 and sentence to a term of 18 months imprisonment (See Attachment G), this visa may be liable to be cancelled under section 501 of the Migration Act 1958 (the Act). A decision to cancel your visa would result in your permanent removal from Australia. The relevant provision and grounds are:
· Subparagraph 501(2)
· Subparagraph 501(6)(a) – substantial criminal record
PROTECTION OF THE AUSTRALIAN COMMUNITY
26.Paragraph 2.5 of the Direction states:
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non‑citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
27. It is the view of the Government (as expressed in paragraph 2.7 of Direction № 21) that the sentence imposed for a crime is an indication of the seriousness of the offender's conduct against the community. Decision‑makers are directed to have regard, inter alia, to 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.
28. Many of the offences committed by the applicant have on conviction attracted relatively minor non‑custodial penalties; but others, particularly those involving serious theft and dishonesty have resulted in sentences of imprisonment. Although individual sentences have not been particularly harsh, in the 17 years since his arrival in Australia, the applicant's prison sentences have added up to more than 5 years.
29. Of particular concern is the circumstance which led to the applicant's current incarceration. Having been sentenced to a total of 18 months imprisonment on 25 August 2003 and released on parole in September 2004 (the precise date has not been disclosed), he was again arrested on 14 October 2004 on charges involving motor car theft and handling stolen goods, for which he was later sentenced to 12 months imprisonment.
30. No evidence has been adduced to suggest any mitigating factors relating to the applicant's criminal conduct, other than to suggest that he has had an ongoing drug dependence which he has endeavoured to finance through the proceeds of his crimes.
31. In relation to the risk of recidivism, paragraph 2.10 of Direction № 21 states:
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non‑citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non‑citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non‑citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
32. The applicant's past record suggests that there is a high risk that he will commit further offences once he is released from prison. In this context, it is relevant to note that in December 1994 he was warned that further convictions could lead to his visa being cancelled, but he nevertheless continued in his unlawful conduct. Furthermore, the fact that he re‑offended in October 2003, shortly after being released from prison on parole, suggests an absence of any real intention or desire to change his ways. His past record demonstrates that he has not achieved any degree of rehabilitation and there is no basis upon which it could be concluded that his future conduct will be any different or that there is a prospect that he will make any positive contribution to the community.
33. The question of general deterrence is not one that has any real significance in this particular case. The nature of the applicant's offences and the prospect of his visa being cancelled are not such as to attract public attention and accordingly it is unlikely that the cancellation of his visa would deter others from committing similar offences. The prospect of a visa cancellation has certainly not deterred the applicant from re-offending.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
34. As a general proposition, it may reasonably be said that the Australian community expects non‑citizens to obey Australian laws while in Australia. The applicant's conduct since he has been in Australia falls far short of that expectation. In particular, the number and frequency of his offences, his failure to heed the warning given in December 1994 and the committing of further offences in October 2004, shortly after being released from prison and while on parole, are indicative of conduct that is anathema to general community expectations.
THE BEST INTERESTS OF THE CHILDREN
35. It is appropriate to deal separately with issues concerning the applicant's eldest son (aged 14 years) and the two younger children (aged 2 and 1). There is no necessary correlation between the interests of the eldest child (who lives with his mother) and those of the two younger children (who are currently in the care of the State while their mother is in prison). Although these are some factors common to them all, all three children were born in Australia and are Australian citizens. The cancellation of the applicant's visa and his subsequent removal from Australia would, more than likely, result in the applicant having little or no on‑going involvement in the children's future welfare and development.
36. The applicant has been in prison for about one‑third of the life of his eldest child. In recent times their relationship has, of necessity, been confined to contact by telephone and written communication, as well as occasional visits to Port Phillip Prison. Apart from the hypothetical possibility that, upon release from prison, the applicant and his son may develop a closer relationship if the father were to remain in Australia, there is no real evidence to suggest that this would occur. Indeed, the high risk that the applicant would re‑offend and be subjected to further imprisonment is just as likely to have the contrary effect. In those circumstances it is highly unlikely that the cancellation of the applicant's visa would be adverse to the interests of the child.
37. As at the date of the Tribunal hearing, the applicant's two younger children were aged 2 years 10 months and 1 year 7 months. Both are currently in the custody of the Department of Human Services while their mother is imprisoned at Deer Park Women's Prison. The mother is said to struggle with a heroin addiction. The applicant has been in prison for virtually the whole of these children's lives.
38. The prospect of the two younger children ever achieving a close relationship with the applicant appears to be extremely remote. However, if in the event that the applicant were to rehabilitate himself to the extent that he was willing and able to fulfil his parental responsibilities to these children, there is no reason to think that their interests would be adversely affected by living in New Zealand with their father rather than in Australia.
OTHER CONSIDERATIONS
39. Paragraph 2.17 of Direction № 21 identifies a number of other considerations which may be appropriate for a decision‑maker to take into account, where relevant. These additional considerations are generally to be given less individual weight than that given to the primary considerations. The following paragraphs deal with such of these considerations as arise in the present case.
40. The removal of the applicant from Australia upon cancellation of his visa would cause little or no disruption of his family or other ties to Australia. His only family ties to Australia are in relation to his children.
41. The applicant was formerly in a de facto marriage relationship with the mother of his eldest child. This relationship ended about five years ago after which the applicant formed a relationship with the mother of his younger children, to whom the applicant refers to as his fiancée. He says they plan to get married in March 2006, presumably after both have been released from prison. It has been suggested that it may not be possible for the children's mother to move to New Zealand due to her criminal record, but that issue has not been explored.
42. There are no immediate family members who are presently dependent on the applicant or who would be disadvantaged by his removal to New Zealand.
43. The applicant's parents reside in New Zealand but their letter of 30 August 2005 (Exhibit A6) demonstrates a distinct lack of enthusiasm for the prospect of having him return there.
44. There is no evidence of the applicant's rehabilitation or recent good conduct. While his conduct in prison is not called into question, his most recent opportunity to demonstrate his rehabilitation, namely when he was released on parole in September 2004, evidence neither rehabilitation nor recent good conduct.
CONCLUSIONS
45. The applicant was granted a sub‑class 444 special category visa on 1 September 1994. On 25 August 2005 he was convicted of a number of offences and sentenced to a term of 18 months imprisonment. By virtue of the provisions of s 501(6)(a) and s 501(7), the applicant has, for the purposes of the Act , a serious criminal record and does not pass the character test, thus rendering his visa liable to cancellation pursuant to s 501(2) of the Act.
46. The applicant has an extensive record of convictions, particularly after being warned of the consequences of further offending, and his conduct in committing further offences shortly after being released on parole indicates that his continued presence in Australia is contrary to the protection and expectations of the Australian community.
47. The removal of the applicant to New Zealand is unlikely to be adverse to the interests of his Australian children or to other persons in Australia with whom he has a connection.
48. Having regard to all the circumstances, it is appropriate that the applicant's visa be cancelled.
49. The decision of the Tribunal is that the decision under review be affirmed.
I certify that the forty‑nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of
The Hon Howard Olney AM QC, Deputy President
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 7 October 2005
Date of Decision: 21 October 2005
Advocate for the applicant: Mr D. Tavo, applicant's relativeSolicitor for the respondent: Mr M. Brereton, Australian Government Solicitor
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