Price and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 494

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2005/99   

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARTIN GRANT PRICE

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date30 May 2005

PlacePerth

Decision The decision under review is affirmed.

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

VISAEX - Immigration -  Class TY 444 visa -  cancellation of visa for failing the character test on the basis of having a substantial criminal record – character test – past criminal conduct – discretion that the Tribunal may exercise where the applicant fails the character test – examination of the applicant’s criminal record – necessity to balance the expectations and protection of the Australian community against other considerations  – held the applicant was convicted of very serious offences and there is a risk he will re-offend – decision under review affirmed.

Migration Act 1958 – ss 501(2), (6), (7)

Ministerial General Direction (No 21)

Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (Unreported)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643

Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442)

REASONS FOR DECISION

30 May 2005 The Hon R J Groom (Deputy President)

1.      This is an application to review a decision by a delegate of the respondent to cancel the applicant’s Class TY 444 visa.

2. The cancellation was made under s501(2) of the Migration Act 1958 (“the Act”) on the ground that the applicant did not pass the character test within the meaning of the Act.

3.      The decision to cancel the visa was made on 21 February 2005 and forwarded to the applicant by letter dated 1 March 2005.

4.      The applicant is presently being held in detention at the Perth Airport Immigration Detention Centre at Redcliffe in Western Australia.

5.      The hearing of the application was held in Perth on 19 May 2005.   The applicant was represented at the hearing by Mr Henry Christie and the respondent by Mr Arran Gerrard.    Oral evidence was given by the applicant, the applicant’s mother Gilian Hampton, the applicant’s sister Andrea Lowry, the applicant’s brother Patrick Hampton and by a friend Maureen Parrish.     The “G” documents and several witness statements were tendered in evidence.

Background Facts

6.      On the basis of the material before me, I find the facts as set out in this and subsequent paragraphs:

(a)The applicant was born in New Zealand on 4 October 1963 and remains a citizen of New Zealand.    He is presently 41 years of age.    He first came to Australia on 6 January 1979 when he was 15 years of age, and except for a brief visit to New Zealand in 1990 and holiday in Bali, has resided in Australia since that date.

(b)The applicant came to Australia with his parents and a sister and brother.   His parents have since separated.   His father has remarried and resides in Perth.    There is no longer contact with his father.  The applicant’s mother Gilian Hampton resides in Queensland.    His brother Patrick Hampton who lives in Western Australia is married with 3 children and is a school teacher and Deputy Principal.     His twin sister Mrs Andrea Lowry, who is an office manager and is married with one child lives in Queensland.   The relationship between the applicant and his mother and siblings appears at present to be good and they seem keen to support and assist him in any way possible.    It is, however, some years since the applicant last saw his mother and sister.   He has had only one visit from his brother in the last 12 months.  The applicant is not married, nor is he in a de facto relationship.   He has no children.

(c)The applicant’s mother said in evidence that he had a very difficult birth.   He is the second born of twins.   The Tribunal was informed that the applicant suffered a lack of oxygen during birth.   His mother believes this seriously affected his health and development.

(d)The evidence before the Tribunal is that the applicant has been convicted of a significant number of offences over many years.   His Western Australian Official Criminal History lists his convictions and penalties as follows:

Court	Date	Offence	Sentence
Perth DC	01/06/04	Grievous Bodily Harm	18 months  Imprisonment
Albany PS	11/10/03	Breach of Bail	$100
Perth PS	20/12/02	Possess Smoking Implement	$200
Perth PS	11/10/01	Failing to Supply Particulars after an Accident	$300
Failing to Report an Accident	$150
Change lanes When Unsafe or fail to keep in One Lane	$150
Perth PS	18/05/01	Resist Arrest	9 months CBO 90 Hrs Comm. Wk
Possess Controlled Weapon	9 months CBO 90 hrs Comm. Wk
Disorderly Conduct	90 months CBO 90 hrs Comm. Wk
Perth DC	01/09/98	6 x Assault Occasioning Bodily Harm	1.18 mths imp 2-3. 18 mths imp conc 4-6. 2 yrs imp conc
False Report	5 mths imp cum
5 x Threats to Kill	1.12 mths imp cum 2-5. 12 mths imp conc
2 x Threats with Intent to Influence	1.12 mths imp 2. 12 mths imp conc
Unlawful Wounding	18 mths imp conc
TOTAL	3 yrs 11 mths imp
Perth PS	22/01/98	Damage	$200
Perth PS	24/04/89	Assault occasioning bodily harm	3 mths imp
Damage	$50
Resist arrest	3 mths imp conc
Broome PS	08/09/87	Escape Legal Custody	3 mths imp cum
Perth DC	04/12/86	Break and Enter dwelling with Intent	2 yrs imp
Perth PS	02/05/86	False address	$30
Perth PS	03/02/86	Cannabis Possess and Quantity	$100
Assault Unlawful (Common)	$100
Perth PS	18/01/85	Cannabis Possess a Quantity	$30
Possess a Smoking Implement	$20
Perth PS	28/03/83	Breach of Probation	$100
Perth CC	13/07/81	Resist Arrest	12 mths Adult prob
Disorderly conduct	12 mths Adult prob
Assault Aggravated Police	12 mths Adult prob
Perth CC	29/04/81	Disorderly Conduct	$20
Perth CC	18/07/80	Disorderly Conduct	$10

(e)It can be seen from the above criminal record that the applicant was sentenced to a number of terms of imprisonment including several of 12 months or more.    A number of the offences for which he has been convicted have involved acts of violence and/or threats of violence.

(f)The criminal history indicates that no convictions were recorded in the period between April 1989 and January 1998.   This period of almost 9 years was a relatively stable and law abiding time for the applicant.    He was living at Broome and then Geraldton in Western Australia, was engaged in useful work and during this time served for some 2 years in the Australian Army Reserve.   This suggests the applicant was then making a genuine attempt at rehabilitation, but then in early 1998 he re-offended and from that point again committed a number of serious criminal offences.

Section 501 and Direction No 21

7. Pursuant to s501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record within the meaning of s501(7) of the Act.

8. Under s501(7)(c) a person is deemed to have a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.

9. I refer to the above criminal history and the terms of imprisonment imposed. It is not in dispute in this application that the applicant has a substantial criminal record under s501(7)(c) of the Act and therefore does not pass the character test.

10. Even if the applicant does not pass the character test, the Tribunal has the power to exercise the discretion provided in s501 of the Act in favour of the applicant. Ministerial General Direction (No 21) – “Under s499 Visa Refusal and Cancellation Under s501 of the Migration Act 1958.”      “(Direction No 21)” guides the Tribunal in the exercise of that discretion.  

In speaking about a similar Direction, Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643:

“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that power in reviewing that decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”

11.     I  also agree with the view expressed by Deputy President Wright in Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442) when he said:  

“… the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution.   In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514).”

12.     As stated in 2.2 of the Direction:

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

13.     So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction No 21, decide how best to exercise the discretion in order to achieve justice.

14.        In considering the discretion it is necessary to have regard to the primary considerations set out in Direction 21, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any children, and to adopt a balancing approach which takes into account all other relevant considerations.

Protection of the Australian Community

15.     It is first necessary to consider the seriousness and nature of the conduct.    2.4 of Direction No 21 makes it clear that a primary consideration is the need to protect the Australian Community and to “… lesson the risk of crime and disorder within the Australian Community”.   

In 2.6 the Direction gives examples of offences which are considered “… to be very serious.”    At 2.6(n) express reference is made to “any other crime involving violence or threat of violence.”

16.     A number of the convictions listed in paragraph 6(d) above must be considered “very serious” within the terms of Direction 21 as they involve actual violence or threats of violence.   They include causing grievous bodily harm, six assaults occasioning bodily harm, five threats to kill, unlawful wounding, assault occasioning bodily harm, unlawful assault and assault police.

17.     The 2004 conviction for causing grievous bodily harm occurred when the applicant intervened in an altercation in a neighbour’s unit.   He said in evidence before this Tribunal that he went next door and saw that a female was being attacked.   He then went to defend her.    During the ensuing fight he grabbed a fishing knife that was on a nearby chair and stabbed the victim in the forearm.   The victim underwent surgery for 4 hours and received 40 stitches in the wound.   In sentencing the applicant Kennedy CJ DC said in the District Court of Western Australia on 1 June 2004:

“Now as I say, I am not suggesting that there’s anything admirable in you stabbing this man or anything appropriate about it and it is certainly very serious and you acknowledge that and so does your counsel.   But that’s not to say that it’s at the highest range of grievous bodily harm by any stretch of the imagination.   In fact, it would have to be said to be at the lowest range on the basis of the information that I have …”.

18.     Another of the offences of violence involved an assault on a former female friend.   He threatened to kill her and assault her by “… grabbing her around the throat.  She had trouble breathing and was thrown to the ground, striking her head on a wall as she fell …”. (see G Documents at p30).

19.     The applicant was also involved in a “siege” at his residence.   He told police, who went to his home to interview him about other offences, that “…he had two bombs wired to the house and if they did not leave, he would blow them up.   The police observed that there were in fact wires connected to the door of the unit.”  (See G Documents at p33)    Some 80 local residents had to be evacuated from their homes and approximately 40 police officers became involved including the Tactical Response Group.   The siege lasted about 7 hours.   The applicant threw “molotov cocktails”  out of a window and later surrendered to police.   The cost of the operation is said to be approximately $30,000.  (See G Documents p34)

20.     Illicit and excessive drug use by the applicant has been a factor in the commission of many of his offences.    The applicant frankly admits to a past addiction to valium and to having used cannabis and amphetamines.  He has also consumed alcohol to excess over the years and recognises that this has got him into trouble.     It is pleasing that in recent times he has made a genuine attempt to overcome his drug and alcohol problems and has attended individual and group sessions conducted by Holyoake.   He has shown a commitment to engage in counselling as well as to make changes to his lifestyle.    According to a report from Holyoake, dated 29 November 2004, he has attended 8 group sessions since his release from prison.  (see G Documents p68).

21.     Despite those efforts in the Tribunal’s view significant weight must be given to the applicant’s course of criminal conduct over very many years often involving serious offences which have either caused or threatened harm to members of the Australian community.

22.     The Tribunal must also consider the likelihood that the conduct may be repeated.

23.     As has been mentioned with the exception of the 1989-98 period, the applicant has established a pattern of quite frequent offending over very many years.   Sixteen separate periods of imprisonment are detailed in the G Documents (see G Documents p52).    As mentioned above a number of the offences must be considered very serious.   Despite the penalties imposed, periods of probation and supervision and past support from family and others he has continued to offend.

24.     The Tribunal recognises that the applicant has received support and encouragement over the years and has himself made efforts to change his ways.   There is evidence that the applicant has often pleaded guilty to offences and  expressed remorse for his conduct.   However despite his own efforts and expressions of remorse he has subsequently offended again.

25.     It is acknowledged that the applicant has made a significant effort to overcome both his substance abuse and anger problems.   He has completed a 12 week intensive course in reasoning and rehabilitation as well as the Holyoake program.   In fact, he has been an active participant, and successfully completed, a number of training courses over the years the details of which are set out in the G documents (see G documents p70-96).

26.     At page 9 of the G documents it is stated that “Mr Price has not previously been warned about the risk of visa cancellation or deportation.”     The Tribunal takes that matter into account, but also notes that the applicant committed an offence of stealing after becoming aware that his visa might be cancelled because of his criminal record.    Although it does not  appear on his record (at G document page 6) the Tribunal finds that he was convicted of this offence in December 2004.     Although it was denied by the applicant in his oral evidence, the Tribunal is also satisfied that the applicant exhibited an aggressive manner when interviewed by an immigration officer in July 2004 at Acacia prison.   He admitted in evidence that he “… was unwilling to provide any information because of her (i.e. the officer’s) behaviour.”   In the Tribunal’s view these incidents are further evidence of an ongoing and concerning lack of self control.

27.     The applicant and his family have indicated that the threat of deportation has had a major impact on him and that there is a new level of determination to reform and avoid future involvement in breaches of the law.

28.     The Tribunal also takes into account the fact that the applicant has been well behaved in the prison system.    The only evidence of significant wrongdoing is his escape from the Karnet Prison Farm in 1986.  After that escape he was at large for 268 days.   The evidence is that he is generally polite in prison and interacts well with other prisoners.

29.     However despite all of the above, the offers of support from well meaning family members as well as Maureen Parrish and others, and also earnest promises from the applicant himself, the Tribunal  concludes on all  the evidence available to it  that it is likely the applicant will re-offend in the future.

30.     A further matter to be considered under Direction 21 is the issue of general deterrence.    The aim of this part of Direction 21 is to deter people from committing the same or similar offences by affirming the cancellation of the visa.   The principal deterrent, of course, in criminal activities is the actual penalty imposed on conviction, but visa cancellation can have an impact on discouraging other non-citizens from being involved in such activities.    However I do not consider this to be a major factor in my decision on this application.

Expectation of the Australian Community

31.      Paragraph 2.12 of Direction No 21 states:

“The Australian community expects non-citizens to obey Australian laws while in Australia.   Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application to cancel the visa held by such a person.   Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.”

32.     As has already been pointed out the applicant has been involved in criminal conduct over a considerable period of time.   A number of the offences he has committed involved violence or the threat of violence.   I would expect that fair-minded members of the Australian community would be most concerned about such conduct by  a non-citizen and would expect, in all the circumstances, that the visa held by such an offender would be cancelled.

33.        The Tribunal must also consider the best interests of the children as a primary consideration as well as Article 3.1 of the Convention Of The Rights Of The Child.    There are no children involved in this case and so this primary consideration and the Convention are not relevant.

Other Considerations

34.        Paragraph 2.1(7) of Direction 21 provides that other considerations may be taken into account in determining how to exercise the discretion given under s501(2) of the Act.

35.      The Tribunal has given proper consideration to all of the relevant matters listed under “other considerations” in Direction No 21.

36.      There is no doubt that affirmation of the visa cancellation would cause distress and hardship to the applicant and his family.    He, of course, is an adult without dependants.   However he would be separated from his mother and siblings who have genuinely offered him support.   The evidence indicates that the applicant has no family, friends or other contacts in New Zealand.   There was no evidence of employment and accommodation prospects there.   There are, of course,  significant cultural and community similarities between Australia and New Zealand.  For example, there will be no language difficulties faced by the applicant should he move to New Zealand.   Also a similar range of professional and support services would be available to him in that country.

37.      There is no evidence to suggest that there are any factors which would preclude the applicant’s family from visiting him in New Zealand should his visa be cancelled.     His mother is currently unwell and has a condition which can make flying difficult, however in evidence she did not rule out travelling  by air in the future.   However, as was acknowledged by the respondent, the cost of airfares and the distances involved would probably prevent regular visits.   If the applicant is required to move back to New Zealand there is the opportunity for the family, if their intentions are sincere as I believe they are, to assist the applicant to settle successfully.   Although it will understandably  be seen in a negative light, such a move may provide the applicant with a special opportunity to put his past behind him and  make a fresh start.

38.      There is no evidence that the applicant is married to or has a de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand citizen.

39.      The Tribunal recognises that the applicant was only 15 years of age when he first arrived in Australia and he is now 41 years of age.    However his long period of residence in this country is not of itself a reason for not cancelling the visa.   I refer to the comments of Her Honour, Justice Mathews in Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (unreported) where Her Honour made the following observation:

“Where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered, notwithstanding that the person arrived in Australia as a minor.   The overriding consideration stressed in the policy statement is the need to protect the Australian community against the criminal behaviour of non-citizens.”

I agree with Her Honour’s observations.

Conclusion

40.     The applicant has a long list of convictions between 1980 and 2004.   As I have said, a number of them involved acts of violence and some must be considered very serious offences.    His family have genuinely offered to assist him and no doubt have tried to assist him in the past.    However clearly past offers of support have not proven to be successful.   The applicant has continued to commit offences.  The Tribunal concludes that if he remains in Australia he is likely to offend again and this could place members of the Australian community at risk.   In this case those factors outweigh all other considerations.

41.     These cases are never easy for the Tribunal and I certainly feel sympathy for the applicant and his family.   I know a decision to cancel the visa will cause him and his family great distress.

42.     However after carefully considering all of the evidence before me and relevant considerations,  I am satisfied that in order to protect the Australian community and in keeping with the expectations of the community, the applicant’s visa should be cancelled.

43.     The Tribunal therefore affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:   K L Miller (Administrative Assistant)     

Date/s of Hearing  19 May 2005
Date of Decision  30 May 2005
Counsel for the Applicant         Mr Henry Christie
Solicitor for the Applicant          Christie & Strbac
Counsel for the Respondent     Mr Arran Gerrard
Solicitor for the Respondent     Australian Government Solicitor