Pull and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 868
•6 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 868
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2005/175
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN PULL Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date6 September 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION - transitional (permanent) visa Class BF - delegate of respondent did not consider whether applicant also held an absorbed person visa - discretion not to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 21 - primary and other considerations - whether other considerations can outweigh primary considerations - relevance of deemed decision to cancel absorbed person visa in consequence of cancellation of transitional (permanent) visa Class BF - offending due to alcoholism and drug addiction - meaning of “home invasion” - best interests of child - relationship with daughters aged 16 and 18 - decision under review affirmed.
JURISDICTION - cancellation of transitional (permanent) visa Class BF - invalidity because of failure to consider effect on assumed absorbed person visa – Tribunal has jurisdiction even if reviewable decision was invalid.
Migration Act 1958, ss 34(2), 501(2) and 501F(3)
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (No. 3) (2004) 136 FCR 494
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Lees v Comcare (1999) 56 ALD 84
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326
REASONS FOR DECISION
6 September 2005 Deputy President D G Jarvis 1. The applicant, Allan Pull, came to Australia from Europe in 1980. On 14 June 2005 he was notified that a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs had decided to cancel his visa on the grounds that he did not pass the character test under s 501 of the Migration Act 1958 (the “Act”).
2. The visa which the delegate referred to in his decision was a transitional (permanent) visa Class BF, which was said to have been granted to him by operation of law on 1 September 1994 under the Migration Reform (Transitional Provision) Regulations. The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the visa. Mr Pull has applied to this Tribunal for review of the delegate’s decision.
Issues Before the Tribunal
3. Under the relevant provisions of the Act, a person does not pass the character test if he or she has a substantial criminal record. The person is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more. Mr Pull was sentenced to terms of imprisonment for terms exceeding this period on five occasions between 1 October 1992 and 14 May 2004.
4. In a Statement of Facts, Issues and Contentions prepared for Mr Pull by Ms K Richards, a lawyer who helpfully provided pro bono assistance, it was conceded that Mr Pull does not pass the character test. At the hearing Mr Pull was unrepresented, and he pointed out that on each of the five occasions when he was sentenced to imprisonment, his sentence was either suspended, or a shorter non-parole period was fixed. As a result, out of all of the periods for which he had been sentenced to imprisonment, the maximum period for which he had remained in prison was nine months. Notwithstanding this, I find that Mr Pull does not pass the character test, because the relevant section in the Act refers to the sentence(s) imposed, and not the term of imprisonment actually served (Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105 at [27] and the cases there cited).
5. However, there is a discretion under s 501(2) of the Act not to cancel a visa. It is accordingly necessary for me to decide whether the discretion not to cancel Mr Pull’s visa should be exercised in his favour.
6. Mr Pull maintained that he became a permanent resident in 1982 to 1983. He did not say what visa he held in order to obtain this status, but said that this would be apparent from his passport, which he had given to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) on 14 June 2005, before he was taken to the Baxter Immigration Detention Facility.
7. Following the hearing, the respondent’s solicitor provided a copy of the passport to Mr Pull and to the Tribunal. This indicates that Mr Pull arrived in Australia in September 1980, and that he has not left Australia since then. According to a letter from the respondent’s solicitor of 25 August 2005 which provides further information as to Mr Pull’s passport and visa status since arriving in Australia, there was some suggestion in one of DIMIA’s databases that Mr Pull had left Australia in 1981 and “possibly returned in 1982”. However, there is nothing in the copy passport provided to me which indicates that Mr Pull has ever left Australia since arriving in 1980, and I find that he has remained in Australia since then.
8. According to the above letter of 25 August 2005, Mr Pull was first granted a temporary visa (T18-UK working holiday) on 30 September 1980, and on 4 January 1993 he was granted a permanent entry permit, and that became a Transitional Permanent visa (class BF) on 1 September 1994, due to the operation of the Migration Reform Act 1992 (Cth), the relevant provisions of which came into operation on 1 September 1994. The copy of the passport provided to me indicates that the permanent early permit was granted on 4 January 1983 not 1993. I think it likely that the 1993 date is a typographical error, but nothing turns on when this entry permit was granted, as that permit was superseded by the visa which was cancelled. Mr Pull’s application refers to the decision of the delegate on 2 June 2005 to cancel his visa. That decision related to his transitional (permanent) visa Class BF, as appears from G2, at pages 8.9 to 9.1 of exhibit R1 (the “G documents”). It is that visa, and the delegate’s decision to cancel it, which is relevant to the application before me.
Jurisdiction – Relevance of Omission to Consider Absorbed Person Visa
9. The respondent’s Statement of Facts and Contentions records that Mr Pull may also hold, or may have held at the relevant time, an absorbed person visa pursuant to s 34(2) of the Act. This section provides in effect that a non-citizen who was in Australia on 2 April 1984 and before then had ceased to be an immigrant, and since then has not left Australia, is taken to have been granted an absorbed person visa on 1 September 1994.
10. After referring to the judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (N0. 3) (2004) 136 FCR 494 as to criteria which might be relevant to determining whether a person has ceased to be an immigrant by being absorbed into the Australian community, the respondent’s Statement of Facts and Contentions proceeds to submit that I have no jurisdiction to determine whether or not Mr Pull satisfied the criteria referred to in s 34 of the Act so as to be taken to have been granted an absorbed person visa. However, whilst not conceding whether or not Mr Pull held such a visa, the Statement further submits that for the purposes of determining the present application only, the Tribunal should proceed on the assumption that the applicant may have held an absorbed person visa at all relevant times, and should consider the consequences of the cancellation of that visa and of the transitional (permanent) visa Class BF (see paragraph 15 of the respondent’s Statement of Facts and Contentions). The hearing of the application proceeded on this basis.
11. At the hearing, counsel for the respondent, Mr Prince, contended that this Tribunal has jurisdiction notwithstanding that following the decision of the majority of the Full Federal Court in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121, the decision of the delegate might have been invalid on the grounds that the delegate did not advert to the deemed cancellation of the absorbed person visa under s 501F(3) of the Act. Counsel relied in support of his contention as to jurisdiction on Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344.
12. In Nystrom (supra) the appellant non-citizen was the holder of a transitional (permanent) visa. The Minister, having reasonably suspected that he did not pass the character test, decided to exercise her discretion to cancel that visa. All of the members of the Federal Court dealt with the case on the basis that the appellant held both the transitional (permanent) visa which the Minister had cancelled, and also an absorbed person visa, since he had ceased to be an immigrant by absorption into the Australian community before 2 April 1984. Under s 501F(3) of the Act, the Minister’s decision to cancel the transitional (permanent) visa meant that she was thereby taken to have decided to cancel the applicant’s other visa, namely the absorbed person visa. Whilst the Minister had cancelled the transitional (permanent) visa, she did not consider whether or not to cancel the absorbed person visa. In a majority decision, Moore and Gyles JJ decided that this led to a jurisdictional error. Their Honours pointed out that the absorbed person visa was not in any way ancillary or incidental to the visa which was expressly cancelled, and further that cancellation of the absorbed person visa might entail considerations different from those that applied to the cancellation of the transitional (permanent) visa.
13. I am, of course, bound by the majority in Nystrom, although I note that Emmett J dissented on the grounds that there was no difference in the substantive content of the two visas held by the appellant. Further, his Honour said the appellant had not pointed to any considerations that would need to be taken into account by the Minister in deciding whether or not to cancel his absorbed person visa that were different from those that would need to be taken into account in deciding whether or not to cancel his transitional (permanent) visa. In those circumstances, he decided that there was no reason for the Minister to have had regard to the effect of s 501F(3), and so the Minister’s decision was not affected by a jurisdictional error.
14. Counsel for the respondent contended that even if in the present matter the delegate’s decision was invalid for the reasons referred to by the majority in Nystrom, this Tribunal would nevertheless have jurisdiction to review the delegate’s decision, and in doing so should expressly take into account that, by virtue of s 501F(3), any decision to cancel Mr Pull’s transitional (permanent) visa would be deemed to be a decision to cancel his absorbed person visa.
15. In Lawlor and Zubair, on which counsel relied in support of his argument that I have jurisdiction notwithstanding that the delegate’s decision might have been invalid, a purported decision had been made, but the decision was invalid. It is clear from these cases (and other authorities to the same effect) that the issue of whether a decision under review was legally effective would not deprive this Tribunal of jurisdiction. I therefore accept that I have jurisdiction to review the delegate’s decision to cancel the transitional (permanent) visa, even though (as appears likely) the delegate’s decision was invalid because he did not consider that that decision would constitute a deemed decision to cancel the absorbed person visa.
16. The question of whether I have jurisdiction to review the deemed decision to cancel Mr Pull’s absorbed person’s visa raises different considerations. On the authority of Lawlor, and on the analysis by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the jurisdiction of this Tribunal depends on the proper interpretation of the law creating the right to review. In the present matter, jurisdiction is conferred on the Tribunal by s 500(1)(b) of the Migration Act. This provides that applications may be made to this Tribunal for review of “decisions of a delegate of the Minister under section 501” of that Act. It seems apparent from the material tendered at the hearing that there has in fact been no decision by the delegate on whether or not to cancel Mr Pull’s absorbed person visa. In these circumstances, it would ordinarily follow that this Tribunal would have no jurisdiction to review the cancellation of that visa. I think to that extent the matter is analogous to Lees v Comcare (1999) 56 ALD 84, where the Full Federal Court held that this Tribunal had no jurisdiction to review a decision on a particular head of entitlement under the Safety, Rehabilitation and Compensation Act 1988 (Cth) which had not been the subject of a review by Comcare. However, under s 501F(3), the Minister “is taken to have decided to cancel (the) other visa”. This artificial deeming provision means that if Mr Pull had applied for review of that deemed decision, I have had jurisdiction to review not only the cancellation of the visa which was the subject of the delegate’s decision, but also the deemed decision to cancel the absorbed person visa.
17. Notwithstanding the analysis in the preceding paragraph, I have concluded that I have no jurisdiction to review the deemed decision to evoke the absorbed person visa, because Mr Pull has not applied for review of that decision under s 500(6B) of the Act. The time within which he could apply for review has not commenced to run, because presumably he has not been duly notified of the deemed cancellation decision. However, for the reasons set out below I have decided that the transitional (permanent) visa should be cancelled, this will therefore constitute a deemed cancellation of the absorbed person visa. There would accordingly be no practical utility in his applying at this stage (when in any event the expiry of the 84 day time limit in s 500(6L)(c) is imminent) for a separate review of the deemed cancellation of the absorbed person visa.
Background Evidence
18. The evidence of Mr Pull and the documentary material before me was uncontested insofar as it related to background facts, and I make the following findings.
19. According to his witness statement (exhibit A1), Mr Pull was born in County Durham in the United Kingdom on 28 August 1956. His father died when he was three years of age, and he lived with his mother and his two sisters. Later his mother remarried. His step-father was an alcoholic who became extremely violent when drunk, particularly towards his two sisters. He tried to protect them but he was very young at the time and so was not very successful. His mother and step-father separated when he was eleven years old and his mother provided for her children as a single parent.
20. Mr Pull’s mother died in 1997. One of his sisters lives in Northern Ireland. His other sister still lives in County Durham, but he fell out with this sister due to a dispute with her husband, and he has not spoken to his sister for some years.
21. Mr Pull left school at the age of fifteen and completed an apprenticeship as a boilermaker/welder in Birmingham. He travelled in Europe before coming to Australia in 1980, when he was twenty-four years of age.
22. For the first two or three years in Australia he moved around a lot. He worked in many parts of Australia in mining towns in South Australia, the Northern Territory and Queensland. He has submitted references from a number of his former employers, which confirm certain of his employment history as a boilermaker/welder.
23. He has two daughters, Natasha who is eighteen years old, and Rachel who is sixteen years old. These are the children of his relationship with one Kathy Jensen, with whom he lived on and off for about ten years. They separated when the children were about eight and six years old.
24. After the separation, Ms Jensen made it difficult for Mr Pull to see his daughters. He obtained contact orders from the Family Court, but often these were not complied with and he had to seek legal assistance to enforce the orders. Notwithstanding the above difficulties, he kept in touch with his daughters on a reasonably regular basis until two to three years ago. He would see them on Sundays for four or five hours.
25. However, Ms Jensen and the daughters moved from their previous address about two or three years ago, and although Mr Pull has made inquiries from various persons including Centrelink in an endeavour to trace their current whereabouts, he has been unable to do so. He is still providing maintenance for his younger daughter, through modest deductions from his Centrelink benefits, and when he was working, through a percentage deduction from his wages. Mr Pull misses his daughters very much. He is hopeful that when they are ready they will make contact with him. He would like to see them again and hopes in the future that he will be a grandfather. He is concerned that if he is forced to leave Australia he will lose the chance of having a relationship with his daughters and being a part of their lives.
26. After the conclusion of the hearing, Mr Pull sought to adduce evidence that he had recently approached the Red Cross to request their assistance to locate his children. Counsel for the respondent maintained that the Tribunal could not have regard to that evidence, because (on a very specific interpretation of the word “information” in s 501(6H) of the Act) that fact had not been set out in a written statement given to the respondent at least two business days before the hearing. I have decided that even if I could have regard to this information it would not affect my ultimate decision in this matter, because I accept Mr Pull’s evidence that he has been endeavouring to find his daughters, and wants to re-establish contact with them. The further evidence which he seeks to adduce merely confirms these matters.
27. Mr Pull has lived in Housing Trust accommodation for the past eight years, except during his periods of incarceration. He has been advised that the Trust are still holding his unit for him until a final decision has been made regarding his visa.
28. Mr Pull has the following convictions for which he was sentenced to terms of imprisonment.
(a)On 3 February 1992, he was convicted of building breaking and felony, and was sentenced to nine months’ imprisonment, which was however suspended.
(b)On 18 August 1992, he was convicted of twelve driving offences which were apparently committed on five different occasions. They included offences such as driving under disqualification, driving an unregistered vehicle, driving with excess blood alcohol, driving without due care, driving with inadequate lights, failure to wear a seat belt, and failure to truly answer questions. On some counts he was imprisoned for various terms of one to six weeks.
(c)On 1 October 1992, he was convicted of four offences, namely enforcement of a breached bond, unlawful possession, building breaking and felony, and building breaking with the intent to commit a felony. The offences were committed on four different dates. He was sentenced to varying terms of imprisonment ranging from six to a head sentence of fifteen months, with some of the terms suspended and with a non-parole period of nine months in relation to the head sentence.
(d)On 11 August 1995, he was sentenced to two years’ imprisonment with a non-parole period of nine months, for burglary.
(e)On 4 September 1995, he was imprisoned for two months for driving under disqualification.
(f)On 28 January 1998, he was convicted of eight offences committed on six different occasions. There were five convictions for larceny, one for receiving, one for false pretences, and one for enforcement of a breached bond. He was sentenced to terms of imprisonment ranging from one month to a head sentence of twelve months and fifteen days, with a non-parole period in relation to the head sentence of twelve months and fifteen days.
(g)On 24 March 1998, he was convicted of two counts of damaging property and two counts of being unlawfully on premises, and was sentenced to one month’s imprisonment.
(h)On 17 September 2001, he was convicted of being unlawfully on premises and non-aggravated serious criminal trespass (place of residence), driving under disqualification and larceny. The latter two offences were committed on separate dates, and the former two offences were committed on the same date. He was sentenced to eighteen months’ imprisonment, which was suspended.
(i)On 13 January 2003, he was convicted of two counts of driving under disqualification on two different dates, and was sentenced to two months’ imprisonment, which was however suspended.
(j)On 14 May 2004, he was convicted of fourteen different offences, which included non-aggravated serious criminal trespass (place of residence) and dishonestly taking property without the owner’s consent; larceny and unlawful possession; a separate offence of larceny; enforcement of a breached bond; driving under disqualification; being unlawfully on premises; and five counts of failing to comply with bail agreement. Most of these offences occurred on different dates. He was sentenced to two years’ imprisonment, with a non-parole period of four months.
29. The applicant’s complete criminal history appears at pages 7 to 12 of exhibit R1, and this incorporates the dates of his offences. He admitted in evidence that he has had 121 convictions since 1983. The convictions are for a wide-range of offences in addition to those referred to in the preceding paragraph. Many of his convictions are for driving offences. They include four convictions for driving with excess blood alcohol between 1983 and 1992, and a fifth conviction for that offence in 2002. He also has five convictions for driving a vehicle contrary to a defect notice between 1995 and 2001.
Legislation
30. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if he or she has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more. As mentioned above, this section is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served, and Mr Pull fails the character test because of the terms of imprisonment to which he was sentenced.
31. Subsection 501(2) provides as follows:
“(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.”
32. For the sake of completeness, I also set out the sections that are relevant to the issues which gave rise to the question of jurisdiction, and to which I have referred above. Section 34 deals with absorbed person visas, and provides as follows:
“A non-citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c)on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d)immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.”
Section 501F deals with the effect of the cancellation of a visa held by a non-citizen, and deems that cancellation decision to be a decision to cancel any other visa held by the person concerned. It provides relevantly as follows.
“s 501F (1)This section applies if the Minister makes a decision under section 501 … to cancel a visa that has been granted to a person.
…
(3)If:
(a)the person holds another visa; and
(b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.”
Consideration of Ministerial Direction No. 21
33. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
34. The three primary considerations in Direction No. 21 are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
35. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
36. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
37. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The examples include home invasion. In the present matter, counsel for the respondent, Mr Prince, pointed out that Mr Pull has convictions for non-aggravated serious criminal trespass (place of residence), burglary and building breaking. I considered the meaning of the expression “home invasion” in Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at [21] to [26]. I concluded that home invasion occurs when an intruder enters a dwelling by force or coercion at a time when one or more of its occupants is present, and the intruder intends to commit or actually commits one or more further offences, such as larceny or attempted larceny of property from the dwelling, or there is a confrontation between the intruder and the occupant(s), involving violence or threat of violence against the occupant(s), or damage or threat of damage to the dwelling or property within it. In the present matter, Mr Pull contended that the offences he committed did not involve any of these elements, and none of them are elements of the offence of non-aggravated serious criminal trespass (place of residence) which is created by s 170 of the Criminal Law Consolidation Act 1935 (Sth Aust). Further, there is nothing in the evidence before me to suggest that any of the breaking and entering offences of which Mr Pull has been convicted that would constitute home invasion within my understanding of the meaning of that expression. I therefore accept Mr Pull’s submission that he has not been convicted of any offence which could be described as “home invasion” within the meaning of paragraph 2.6 of the Direction.
38. I further accept Mr Pull’s submission that he has no convictions for crimes of violence against the person. I note that there was one conviction, on 3 November 1992, of producing a controlled substance. This might therefore be included in the drug-related offences referred to in paragraph 2.6(a) of the Direction. However, he has not been convicted of any subsequent offence involving the production of illicit drugs, and the conviction to which I have referred was recorded many years ago, on 3 November 1992. It resulted in a fine of only $150.00. I regard this offence as of little consequence.
39. Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime(s), and (by virtue of paragraph 2.8(a)) any relevant mitigating factors. In this context I think that it is relevant to take into account not only the length of the terms of imprisonment to which Mr Pull was sentenced, but also that in many instances, the non-parole periods fixed by the sentencing Courts was significantly less than the sentences, or the sentences were suspended. I agree with Mr Pull’s submission that these modified penalties indicate that in many cases the Courts in question did not view the offences as being particularly serious.
40. In the present matter, none of the convictions were for crimes which could be considered repugnant. They do not involve violence or fraud against defenceless persons. I also take into account that Mr Pull was affected by alcoholism and he became addicted to heroin, and in many cases his offences were committed in order to obtain funds to support his drug addiction. He also said that the offences of larceny and unlawful possession which he committed in 2002 were for stealing food, and that he had a lot of debts at the time and sometimes did not have enough money to buy food. He also said that he did not have enough money to register his car but still needed to use his car to look for work, and as a result committed a number of offences of driving an unregistered and uninsured vehicle. He also said that his most recent offence of non-aggravated serious criminal trespass (place of residence) occurred following a break-in at his own house, when some of his belongings were stolen. He had heard that his belongings were at the house where he committed the offence, and he had gone there to look for them.
41. However, by virtue of paragraph 2.7(a) of the Direction, I must also have due regard to the extent of the non-citizen’s criminal record, including the number and nature of the offences, the time between offences, and the time that has elapsed since the most recent offence. In considering this first primary consideration I must also take into account the Government’s endeavours to protect the Australian community from the actions of criminals. Mr Pull has committed a very large number of offences at regular intervals since his arrival in Australia. His most recent offence (leaving aside the convictions for the enforcement of a breached bond) was in February 2004, and entailed driving an unregistered and uninsured motor vehicle. He was then incarcerated until September 2004, and has no convictions for offences between then and being placed in immigration detention in June 2005. There has been little time between offences, and the time that has elapsed since the most recent offence is insignificant, taking into account the period of his incarceration.
42. Whilst none of the offences have been serious within the context of the criteria in the Direction, they no doubt caused considerable concern to those persons who were affected by his conduct, and the community should not be subjected to criminal behaviour of the kind which the applicant engaged in on such a regular basis. Further, although driving offences are not specifically referred to in the Direction as serious offences, the significant number of offences involving driving with excess blood alcohol or driving a vehicle contrary to a defect notice entailed conduct which showed a disregard for the safety of other road users.
43. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, 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.
44. As I have mentioned above, Mr Pull attributes his offending to his heroin addiction, and it appears that earlier he had had a problem with alcohol. In his witness statement, exhibit A1, he says that he no longer uses illicit drugs and has been clean for “about 2-3 years” (exhibit A1, paragraph 22). He said that he had been on the methadone programme which was medically supervised, but he had ceased taking methadone. He then took buprenorphine, but stopped taking this drug before he left prison in September 2004. He had participated in the SA Drug Court Programme from September 2000, and completed the programme in September 2001, by which time he had become drug free. When he was under the supervision of the Drug Court, he had also been prescribed methadone, but had ceased taking methadone because this had made him too sick to work. Unfortunately, he relapsed into taking heroin again after completing his Drug Court programme, but later again ceased to use heroin. His oral evidence as to the period since he last used heroin, the period for which he was last on methadone, and the period for which he was taking buprenorphine was somewhat confused, but it seems likely, and I find, that Mr Pull has not used heroin for at least three years.
45. I note that in his witness statement, Mr Pull says that prior to his visa being cancelled he was on parole, and his parole conditions included reporting weekly, abstaining from alcohol and other drugs and having random urine testing and breath analysis. He goes on to say that he has reported regularly and complied with his other parole conditions. This information was not contradicted, and is consistent with a report dated 24 March 2005 from a community corrections officer (exhibit R1, G13, page 124). I have also taken into account the information in other reports and letters, including various pre-sentence reports and parole reports, which are included in exhibit R1.
46. It is to Mr Pull’s credit that he has been able to cease using alcohol and heroin. This undoubtedly reduces the risk of repeat offending. However, the Direction requires me also to take into account whether the non-citizen has committed a further offence after having been warned previously of the risk of cancellation of his or her visa. In the present matter, Mr Pull was issued with a warning by DIMIA on 26 August 2002 (exhibit R1, page 145). Notwithstanding that, he subsequently committed a number of offences, including larceny (on two occasions), being unlawfully on premises, non-aggravated serious criminal trespass (place of residence), taking property without the owner’s consent, driving an unregistered and/or uninsured motor vehicle on four occasions, and driving without a licence on two occasions (apart from offences of failing to comply with his bail agreement). The time since Mr Pull last offended, and his total criminal history (being two further matters which I am required by the Direction to consider under this heading) also suggest that there is a significant risk that the applicant would continue to offend if he is permitted to remain in Australia.
47. Mr Pull submitted that Australia is short of skilled workers, and that he is confident that he would be able to obtain a job as a boilermaker/welder in Australia. However, he also referred to the difficulty that there is no public transport to the suburbs where such work is likely to be available, and to the likelihood that he would need to provide his own transport to travel to work required off-site. His financial position is such that he will find it very difficult to acquire a reliable vehicle. He was unable to obtain work between his release from gaol in September last year until he was placed in immigration detention in June this year. There is no clear evidence that he would be able to make a positive contribution to the Australian community.
48. General Deterrence The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any cancellation of a visa, and if the visa cancellation is confirmed, DIMIA could point to an established precedent. There is no evidence before me as to whether or to what extent publicity would be given to the outcome of this matter, and I attach little significance to this matter in the present case.
49. Having had regard to all of the factors relevant to the first primary consideration, I consider that this consideration would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
50. This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
51. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. I have referred above to Mr Pull’s long criminal record. His offending has been frequent and regular for more than twenty years. He has been treated leniently in many instances and has been given every opportunity and encouragement to mend his ways, but did not do so. He disregarded the clear warning by DIMIA that his visa was liable to cancellation, and that further offending would lead to a fresh assessment being made with a view to consider cancelling his visa if there were future convictions. No doubt there would be sympathy for Mr Pull, particularly in view of his unhappy childhood and his desire to re-establish contact with his daughters, but taking all things into account, I think that the Australian community would conclude that he has substantially disregarded the laws of Australia, and that his conduct has been disruptive to the community and has exposed members of the community to risk and distress.
52. Taking all of the evidence into account, I think that this second primary consideration would dictate that the applicant’s visa should be cancelled.
Third Primary Consideration – Best Interests of a Child or Children
53. Paragraph 2.13 of the Direction provides that this consideration applies to children less than eighteen years of age. This consideration is therefore relevant to Mr Pull’s younger daughter, Rachel. The position of his older daughter who is now aged eighteen may be considered under paragraph 2.17, to which I will refer below.
54. Paragraph 2.15 states that, in general terms, the best interests of a child of the non-resident will be served by remaining with his or her parents. When assessing this consideration, decision-makers are directed by paragraph 2.16 to have regard, amongst other things, to the nature of the relationship between the child and the non-citizen (2.16(a)); the duration of their relationship and number and length of any separations and reason(s) for the separation and the hypothetical prospect for developing a better/stronger relationship in the future (2.16(b)); the age and migration status of the child (2.16(c) and (d)); and the likely effect of separation (2.16(e)).
55. Unfortunately, Mr Pull has not had contact with either of his children for the last two to three years, due to circumstances beyond his control. I accept his desire to resume contact with his daughters. Through no fault of his, there is no evidence before me from the children’s perspective of their relationship with the applicant. The evidence as to his employment history over the last few years suggests that he has not been able to provide significant financial assistance to them.
56. This is a case where I must consider the hypothetical prospect of the applicant developing a better/stronger relationship with his children in the future in circumstances where there has been no contact for the last two or three years, and under paragraph 2.16(b) of the Direction, this hypothetical prospect is to be given relatively less weight than a proven history of a relationship based on past conduct. I think that this factor would point to the discretion being exercised in Mr Pull’s favour, but the evidence before me does not establish a strong case to that effect.
Other considerations
57. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
58. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the respondent by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant: see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326). It appears likely that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 was amended to include the word “generally”, whereas the corresponding paragraph of the predecessor of the current Direction, namely Direction No. 17, omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
59. I have concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
60. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. The position of the applicant’s older daughter must be considered under this heading. Because she is now over eighteen, the applicant is not liable to support her, and there is no evidence that he has been doing so since she turned eighteen. The fact that the applicant has been separated from both his daughters for the last two to three years reduces the disruption to his immediate family. However, I take into account that if Mr Pull’s visa is cancelled, his only opportunity for ongoing contact with his daughters would be if they were to travel overseas and visit him in the country where he is then living. This will potentially constitute a significant disruption to the applicant’s family, and there is a substantial risk that he may lose touch with his daughters completely.
61. Mr Pull has no business or financial ties to the Australian community, being a further aspect to be considered under paragraph 2.17(a) of the Direction. Further, he is not married to any Australian citizen, and is not in any relevant de facto or interdependent relationship with an Australian citizen.
62. Paragraph 2.17(c) refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere. I have referred above to the issue of financial support. There is no evidence that Mr Pull’s daughters will be unable to travel overseas to see him in the future, but I can infer that this would be difficult, and indeed might never occur.
63. Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). I have referred above to Mr Pull’s rehabilitation, and that of course counts in his favour. However, there has not been any sustained period of good conduct.
64. The final relevant consideration under this heading is that referred to in paragraph 2.17(k) of the Direction, namely that the applicant had been formally advised in the past by an officer of DIMIA about conduct which brought him within the cancellation provisions of s 501 of the Act. As mentioned above, DIMIA warned the applicant that he was at risk of his visa being cancelled by its letter to him of 26 August 2002, but unfortunately he has offended on a number of occasions since that warning.
Conclusion
65. I have had careful regard to the considerations set out in the Direction. My evaluation of the matters relevant to the first and second primary considerations point clearly to exercising my discretion to cancel Mr Pull’s visa. The third primary consideration and the other considerations would tend to suggest that the discretion should be exercised in Mr Pull’s favour, but these considerations are not strongly in his favour.
66. After considering all the evidence before me and balancing all of the relevant considerations in the Direction, I have decided that it is appropriate to exercise the discretion under s 501(2) of the Act in favour of cancelling the applicant’s transitional (permanent) visa Class BF.
67. I must also take into account that by virtue of s 501F(3) of the Act, the cancellation of Mr Pull’s transitional (permanent) visa class BF involves a deemed decision to cancel his absorbed person visa (assuming, as I have, that he is the holder of such a visa). I find that on the facts of this matter, the considerations referred to in the Direction in relation to the exercise of discretion to cancel the absorbed person visa lead to the same issues and the same conclusions. The consequential cancellation of that visa does not therefore lead me to reach a different conclusion in reviewing the delegate’s decision.
Decision
68. I affirm the decision under review.
I certify that the 68 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 18 August 2005
Date of Decision 6 September 2005
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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