QX06/15 and Minister for Immigration and Multicultural Affairs
[2006] AATA 927
•31 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 927
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/601
GENERAL ADMINISTRATIVE DIVISION ) Re QX06/15 Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date31 October 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...............Signed...............
Deputy President
CATCHWORDS
IMMIGRATION – deportation – cancellation of absorbed person visa – failure to pass character test –substantial criminal record conceded – Ministerial Direction No. 21 – protection and expectation of the Australian community – best interests of the children – other considerations – exercise of discretion – decision under review affirmed
Migration Act 1958 (Cth.) ss 34,499(1), 500, 501(1)(2),
Administrative Appeals Tribunal Act 1975 (Cth.) s 35
R v B [2003] QCA 26
Migration Agents Registration Authority v Shi [2006] FCA 1236
Re Stone and the Minister for Immigration and Ethnic Affairs (1981) 3 ALN Note 81
Afoa and the Minister for Immigration and Multicultural Affairs [1999] AATA 82
Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
REASONS FOR DECISION
31 October 2006 Deputy President P E Hack SC Introduction
1.The applicant was born in the United Kingdom in August 1953. In 1974, when he was aged 21 years, he came to Australia. On 1 September 1994, and by operation of s 34 of the Migration Act 1958 (Cth.), the applicant was taken to have been granted an absorbed person visa.
2.On 23 August 2006 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, cancelled the applicant’s visa in reliance upon s 501(2) of the Act, that is, on the basis that the applicant did not pass the character test because he had a substantial criminal record and the delegate determined not to exercise the discretion not to cancel.
3.Application is now made to the Tribunal for a review of the decision to cancel the applicant’s visa. The matter is one where the expedited procedures in s 500 of the Act apply.
4.Given the nature of the applicant’s criminal history I have already made orders pursuant to s35 of the Administrative Appeals Tribunal Act 1975 (Cth.) to ensure, as far as possible, anonymity for the victims of the applicant’s crimes.
Legislation
5.By virtue of s 501(2) of the Act the Minister has power to cancel a visa. That power is enlivened in a number of circumstances including, relevantly, where the visa holder has a substantial criminal record as that expression is used in the Act. The applicant concedes that he has a substantial criminal record and, accordingly, the question in the present case is whether the discretion not to cancel the applicant’s visa ought to be exercised.
6.Section 499(1) of the Act permits the Minister to give written directions about the performance of a function, or exercise of a power, under the Act. Such a direction, Direction No. 21 dated 23 August 2001 (the Direction), has been made in relation to decisions under s 501 to cancel a visa.
7.I am obliged to have due regard to the importance placed by the Government on three “primary considerations” and, as well, to adopt a balancing process, taking into account all relevant considerations. I will deal the various matters said to be relevant in due course but for the moment I should set out the background against which those matters fall to be considered.
Background
8.The applicant was, as I have said, aged 21 years when he came to this country from the United Kingdom. He has lived here ever since.
9.In July 1977 the applicant was convicted of two charges of indecently dealing with a girl under the age of 14 years. The offences were committed, apparently, on two separate occasions in January 1976 and August 1976 against the applicant’s niece, who was then aged 7 years. The applicant was then about 22 years old. It is unnecessary to record the details of these offences here; they are set out in the evidence and I am conscious of them in considering the matter.
10.In relation to these offences he was sentenced to imprisonment for concurrent terms of 6 months and 9 months.
11.It is next material to note that in 1982 the applicant commenced a relationship with K. They married in May 1984.
12.In November 1984, and again in February 1985, the applicant was convicted of the offence of obtaining credit by fraud. The offences were committed by the applicant when he obtained a credit card on two separate occasions by the making of knowingly untrue statements. He was fined on each occasion.
13.The applicant was next before the criminal courts in February 1986 when he was convicted of conspiracy to defraud and false pretences. In July the previous year he and a neighbour came up with a scheme where he pretended to have been the victim of a break-in when, in reality, the property supposedly stolen had been secreted in the neighbour’s house. The “break-in” was reported to police and a claim made on his insurance policy. The false claim constituted the charge of false pretences. In relation to these offences he was sentenced to two years imprisonment. In May 1986 the applicant was convicted and fined in relation to the false complaint to police causing police investigation arising out of the earlier conspiracy.
14.When the applicant married K in 1984 K had three children from an earlier relationship – R, a girl born in November 1976, and two boys, T born in February 1981 and D, born in May 1982. It is the applicant’s dealings with R that have led to these proceedings. Three children were born to the applicant and K; P, born in July 1983, L born in September 1985 and G born in February 1988.
15.In September 2002, the applicant was tried on an indictment charging two counts of indecent dealing committed on R when she was under 16 years (Counts 1 and 2), one count of unlawful carnal knowledge committed on R when she was a child under the age of 16 (Count 3) and 35 counts of incest on R after she had turned 16.
16.The offences of indecent dealing were alleged to have been committed between 1 January 1983 and 1 January 1984 (Count 1) and between 22 April 1985 and 12 June 1988 (Count 2). Count 3, the charge of unlawful carnal knowledge, was alleged to have been committed between 1 June 1992 and 30 September 1992 when R was aged 15 ½ years. The charges of incest were alleged to have been committed over a period from 10 July 1997, when R was 20 years old, to September 2000, when she was 24 years old.
17.As a consequence of the applicant’s incestuous relationship with R two children were born – a son born in March 1993 and a daughter born in May 1997. The applicant hid his relationship with R from K and the rest of the family. R and the two children were part of a household with the applicant and K until October 2000 when they moved out of the house. At that time R made a complaint to police about the applicant’s conduct. The applicant has had no contact with R or the children since that time other than in the course of the criminal proceedings.
18.After a trial lasting 5 days the applicant was acquitted of Count 1, acquitted of one count of incest (Count 35) but found guilty of all other charges. He was sentenced to imprisonment for three years concurrent in respect of Count 2 (indecent dealing) and Count 3 (unlawful carnal knowledge) and a further four years imprisonment in respect of the remaining counts of incest, those sentences to be served concurrently inter se but cumulatively upon the sentence of three years imposed on Counts 2 and 3. Thus, in total, the applicant was sentenced to an effective term of 7 years imprisonment. The sentencing judge, Boyce QC, DCJ, made an order requiring the applicant to report any change of name and address to the Commissioner of Police for a period of 10 years after his release from prison.
19.There was an appeal against the convictions, which seems to have been pursued only in respect of the conviction on Count 2, and against the sentences. The Crown conceded on appeal that the conviction on Count 2 could not be supported and the appeal was, to that extent, allowed and a judgment of acquittal entered on that count. The appeal against sentence was allowed to the extent of reducing the sentence on the incest counts from 4 years to 3 years, leaving the applicant to serve an effective term of 6 years.
20.On the information before me the applicant is due for release on 5 September 2008 however he has an application for parole being considered at the moment.
21.In May 2006 the applicant was, in effect, called upon to show cause why his visa ought not be cancelled pursuant to s 501(2) of the Act. The delegate of the respondent considered the matters put forward by the applicant but determined on 31 July 2006 to exercise the discretion under s 501(2). The applicant was given notice of this decision on 23 August 2006 and commenced these proceedings on 25 August 2006.
The Hearing
22.The applicant, his spouse K, his stepson D, his son P, his daughter L, and B, the fiancé of P, all swore affidavits that were, in the main, directed to the hardship that the applicant’s family, especially K, would suffer were the applicant obliged to leave Australia. The applicant and K were cross-examined by the solicitor for the respondent.
23.In addition, the applicant relied upon reports prepared by Dr Brian Hazell a clinical psychologist, dealing with the applicant’s prognosis and that of K.
24.Finally, I should note that the respondent tendered a document, obtained by summons from the Corrective Services Commission, that appears to be a report on a sexual offending programme undertaken by the applicant. The author of the document (and of the opinions expressed in it) was not called. In the absence of evidence from the author I have some difficulty in understanding and interpreting its contents.
Ministerial Direction No. 21
25.Given the concession that the applicant does not satisfy the character test I am required to have regard to the considerations enumerated in Part 2 of the Direction in particular the primary considerations discussed in paragraphs 2.3 to 2.16 of the direction and the other considerations discussed in paragraph 2.17 to 2.24.
26.I am required to have due regard to the importance placed by the Government on the three primary considerations but must adopt a balancing process, taking into account all relevant considerations.
27.The primary considerations are:
(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.
Protection of the Australian community
28.The Direction recites the fact that the Government seeks to take reasonable steps to protect the community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. It suggests that the factors relevant to an assessment of the level of risk to the community from the continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated (including any risk of recidivism) and whether visa cancellation may prevent or discourage similar conduct or act as a general deterrent.
29.No other factors are said by the parties to be relevant to this issue and I will discuss each of these matters in turn.
The seriousness and nature of the conduct
30.There is no doubt that the applicant has an appalling criminal history which includes both offences of dishonesty and offences against morality. The offences in relation to R are, in my view, the most serious. The gravity of the matter was expressed in this way by McPherson JA in the appeal:[1]
In effect the appellant debauched this girl when she was under age and set her on a path to committing numerous later acts of incest with him.
[1] R v B [2003] QCA 26 at p 10.
McMurdo P[2] spoke of “the exploitation of the complainant” and regarded the subsequent birth of a child as a serious aggravating factor.
[2] Id. at p 11.
31.The partial success of the appeal does not detract from the relevance of the remarks of Boyce QC, DCJ who said:
…There is no doubt that in most cases young children who are defiled in their childhood are subject to psychological trauma in later years and in many cases the psychological trauma will be severe.
A young child is almost totally defenceless in a family situation where she is being abused by her father or her stepfather. This was a gross breach of trust on your part. That young child was entitled to look to you for care and protection in this world. Instead you used her for your sexual gratification.
32.There is no direct evidence before me of whether R has suffered psychological trauma. It seems likely in the circumstances. Certainly, the effect of the applicant’s conduct is that R is now estranged from her mother, K, and from her siblings.
33.As it seems to me the Direction is entirely apt in noting, at paragraph 2.61(d) that:
… sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence.
34.And, in my view, the applicant’s most recent criminal conduct appears all the more repugnant when it is recalled that he was convicted in 1977 of indecent dealing with his seven year old niece and that he has, as well, convictions arising from three separate episodes of calculated and planned dishonesty. In short, this is a bad case of serious criminal conduct stretching over almost the entire period of the applicant’s residence in this country.
The likelihood of re-offending
35.Next, I need to consider the likelihood that the conduct may be repeated. In considering this aspect of the matter it seems to me that I am bound to consider the matter by reference to evidence of the position as at the date of the decision. That seems to me to flow from the nature of the decision under review and the jurisprudence regarding cancellation decisions, most recently considered by Edmonds J in Migration Agents Registration Authority v Shi.[3]
[3] [2006] FCA 1236
36.That being so I consider that I am obliged to disregard the fact that by reference to Exhibit 11 the applicant appears to have completed a sexual offending programme whilst in gaol. But I can take into account that, as at the date of the decision, he had undergone rehabilitation and cognitive courses even though the commencement of the sexual offenders’ treatment programme had been delayed and was not due to be completed until September 2006. All of this information, and the fact that completion of the course was precursor to the applicant being considered for parole/community based release, was before the decision maker in the letter from the applicant’s representative dated 22 June 2006.
37.But I do have the benefit of reports from Dr Hazell, a clinical psychologist of almost 30 years experience. Dr Hazell interviewed the applicant at some length and administered a battery of psychological tests. In a report dated 9 June 2006 Dr Hazell said:
2. [The applicant’s] presentation is consistent with a low recidivism index. However, to strengthen his already strong resolve, he would benefit by a brief but intense individual sex offender’s program tailored to his needs.
…
[The applicant] has the intellectual, emotional and motivation [sic] resources to do well in such a program. However, he has been accepted into the in-house Sex Offender’s program. He has a high completion rate in over 30 in-house programs. Even without such programs, I consider [the applicant] already a low risk of re-offending, I would rate him now without therapy as a (2) on a Five-point scale, five being a high risk and (1) being no risk. However, in deference to the sentencing Judge’s concerns any parole may be conditioned on an individual follow-up treatment program being organized through Community Corrections.
38.Dr Hazell described himself as having established a good relationship with the applicant and in a position to act as a support person upon his release.
39.The respondent placed some reliance upon these remarks of the learned trial judge:
I make this comment that before you are considered for early release, careful consideration should be given to the question whether you pose a risk to the children of this community. In my opinion you pose a substantial risk to the children of this community and I recommend that the prison authorities have a psychiatric assessment made of you while you are serving your sentence.
His Honour also noted that the applicant was “very adept at telling tall stories.”
40.I should also note that the original decision maker had regard to a report from a Ms Diane Hicks, Senior Community Correctional Officer. That report was not relied upon by the respondent at the hearing.
41.Whilst I am conscious of the need to give weight to the views of Boyce QC, DCJ expressed after a 5 day trial it seems to me that I ought to give greater weight to the opinion of Dr Hazell which was not contradicted by any evidence from the respondent nor challenged in any material way. It is a matter of some regret that the view of Dr Hazell that the applicant was unlikely to re-offend was not challenged by any contrary evidence or, in any meaningful way, in cross-examination. I say that because the opinion seems to me to fly in the face of the pattern that the applicant has demonstrated to date. But, as I say, there was no real challenge and I could not conclude that the evidence of Dr Hazell was inherently incredible or unreliable so as to require it to be rejected.
42.On this basis it is my view that the risk of the applicant re-offending should be regarded as being quite low.
43.The respondent advanced an argument, based on the remarks of Davies J, as President of the Tribunal, in Re Stone and the Minister for Immigration and Ethnic Affairs,[4] that even if the risk of recidivism was not high, the risk would strongly support deportation when recidivism, if it does occur may cause great harm. Here it was contended that:
… given the seriousness of [the applicant’s] criminal conduct, the Tribunal should find that even a slight risk of re-offending can have grave consequences for the Australian community, warranting the cancellation of [the applicant’s] visa for its protection.
[4] (1981) 3 ALN, Note 81
44.I entirely agree, with respect, with the comments of Davies J however I think the respondent’s contentions overstates the consequences were re-offending to occur. Undoubtedly any re-offending behaviour would have grave consequences for the victims or victims of that conduct but I think one must keep a sense of proportion about the notion of “grave consequences for the Australian community.”
General deterrence
45.The final aspect of the consideration of the protection of the Australian community is that of general deterrence. It is not difficult to imagine cases
where visa cancellation might act as general deterrence to others who might be tempted to engage in criminal conduct. But, as it seems to me, the present is not such a case. It must be regarded as a given, in this day and age, that persons who commit sexual offences against children will almost certainly be sent to gaol. But that seems not to stem the flow of such cases in the criminal courts. Absent particular evidence, I cannot regard a decision to cancel the applicant’s visa as having anything other than a slight prospect of acting as a deterrent upon like-minded persons, a fortiori given the orders made under s 35 to ensure anonymity for the victim.
46.Under the rubric of general deterrence the respondent also contended that I should find that the protection of R and her two children required that the cancellation decision be affirmed and that I should place significant weight on this consideration. I do not agree.
47.On the evidence, R and her children have had no contact with the applicant since October 2000. Whether that continues will depend upon the wishes of R but the evidence of Dr Hazell, again not contradicted or challenged, is that the children of the relationship with R would benefit from knowing, and having access to, their father. That is not something that the applicant could impose upon R and the children and, were he to seek to do so, I imagine that proceeding could be brought to prevent him from doing so. But the evidence seems to me to point to the opposite conclusion to that contended for by the respondent.
The expectations of the Australian community
48.I turn then to the second primary considerations, the expectations of the Australian community. In relation to a similar expression in an earlier ministerial direction Deputy President Forrest said:
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.[5]
[5] Afoa and the Minister for Immigration and Multicultural Affairs [1999] AATA 82 at pp 7-8.
49.And, as Deputy President McMahon observed in Leha and Minister for Immigration and Multicultural Affairs:[6]
There would be a general expectation in the community that the Act would be administered fairly and humanely.
[6] [2000] AATA 1054 at [34].
50.I accept the force of the remarks of Davies J in Stone[7], relied upon by the respondent here, that the nature of some offences is of such significance that the offender may be regarded as having placed himself or herself among the class of persons whom Australia will not accept. As his Honour said:
The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia.
[7] Supra at 133.
51.The Australian community would expect non-citizens to obey the law and that a non-citizen who did not obey the law would be punished. But I am not here concerned with notions of punishment; rather I am concerned to consider whether the applicant’s criminal record, appalling in its scope and abhorrent in its detail, is such that the Australian community, by the standard of an objective and properly informed bystander, would regard that criminal conduct as warranting the applicant’s removal from this country.
The best interests of the children
52.The third primary consideration is the best interests of any children under 18. The Direction recognizes that, in general terms, the best interests of a child under 18 will be served if the child remains with its parents. That proposition is no doubt true and, indeed, is reflected in the evidence of Dr Hazell in the present case. But the present case is unusual in that, for obvious and understandable reasons, the applicant is estranged from R and the two children, now aged 13 and 9, born to that relationship and has had nothing to do with them since October 2000.
53.That circumstance seems to me to amount to a countervailing consideration, of the type spoken of in paragraph 2.15 of the Direction. But I am unable to accept, as the respondent contends, that the best interests of these children would be served by the removal of the applicant from Australia. Neither logic nor the evidence supports that proposition.
54.The opinion for Dr Hazell is that the outcome for children is much better by knowing their parents and their origins. The respondent criticizes that evidence on the basis that Dr Hazell had not interviewed the children or R. That is true. But Dr Hazell was not purporting to express any opinion about the circumstances of these children, rather he was expressing an opinion that is generally true of all children, indeed, an opinion supported by the Direction.
55.In the result I do not accept the respondent’s contention that the best interests of these children require his removal from Australia. On the evidence of Dr Hazell, which accords, in any event, with my sense of the position, the interests of these children would be best served by an eventual reconciliation between the applicant and the children. But, in the circumstances that presently prevail and will likely prevail into the foreseeable future, I give very little weight to this consideration because it seems to me to be unlikely that there will be a reconciliation between the applicant (or his family) and R such that reconciliation with the two children could be considered as other than a remote possibility.
Other considerations
56.It is now necessary to have regard to the other considerations. Several matters are listed, non-exhaustively, in paragraph 2.17 of the Direction. I do not propose to go through that list seriatim but rather I will discuss those that appear to me to be relevant considerations. They are, in any event, the matters raised by the parties.
57.The most significant issue is that of the applicant’s immediate family - his spouse of some 22 years K, and the stepchildren and children who continue to support him.
58.Dr Hazell evaluated K’s psychological history and reached this conclusion:
… [K] has limited intellectual, emotional and/or psychological resources and poor capacity to be self-supporting financially. The deportation of her husband is likely to have a devastating impact on her emotional stability. At best, it is likely to precipitate a major depressive illness, or at worst, given her high psychotic and/or antisocial tendencies a very serious psychiatric condition. Her children are at an age when they are likely to become busy with their own lives and go their own ways.
…
Most women in [K’s] situation would suffer hardship and an intense but short traumatic reaction to the loss of her husband. Most would recover in time. However, [K] is more vulnerable than most. She has multiple handicaps. Not the least of which is her mild neurocognitive disorder and her short and long term memory problems. These memory problems are likely to get worse over time. Already, since her husband’s incarceration she has had difficulty managing her medication, has been assaulted and her house has burned down. Without her husband caring for her. I have grave concerns for this extremely vulnerable women.
59.In her affidavit K, who has spent all her life in Australia, addresses the dilemma that she would face were the applicant to be deported. She has six children, all Australian citizens by birth, ranging in age from 29 to 18. She has been loyal to her husband in circumstances where many, in similar circumstances, would have ended the relationship. She expresses the matter in this way:
How can a woman be asked to choose between her husband and her children. If you ask me what will I do if my husband’s visa is cancelled, the only honest answer I can give you is I do not know. But whether I go with him and lose my children, or I end our marriage and stay here in the only home I have known – the only result is deep, deep sadness.
60.The applicant’s stepson D and his children P and L, all demonstrate a remarkable degree of forgiveness towards the applicant and a seemingly genuine desire to rebuild the family in a way that includes him.
61.As it seems to me it is not an answer to say, as does the respondent, that any disruption to the family could be overcome because the family could maintain regular contact with the applicant in the United Kingdom. That response is, with respect, altogether too glib. But ultimately, and because all the children are now adults and making their own way in the world, the weight to be accorded to a disruption to their lives is not great.
62.It is, in my view, proper to have regard to the applicant’s medical condition. He suffers from type 2 diabetes, has had a significant episode of cancer of the colon and is presently confined to a wheelchair as a consequence of the disintegration of his left ankle joint. That has some relevance were he to be deported to a country that he left as a 21 year old and has not returned to since.
63.I mention, although I do not regard it as being significant, that the applicant has not been previously warned of the possibility of visa cancellation. Had there been such a warning the case for deportation might have been more compelling, but I do not regard the absence of a warning as telling in favour of the applicant’s case.
64.I acknowledge that the applicant will undoubtedly experience difficulty with his health care and general welfare if returned to the United Kingdom. He has no close relations there and no support network, having left there very many years ago.
65.Finally I note that the applicant placed reliance upon a report by the Commonwealth and Immigration Ombudsman, Professor John McMillan, published in February 2006 into the administration of s 501 of the Act. In that report Professor McMillan made certain recommendations which the Department of Immigration and Multicultural Affairs are shown as having accepted. But it seems to me that it is of more importance that the Minister has not altered the Direction following receipt of the Report. Nonetheless I accept that the Report does demonstrate that visa cancellation can create hardship when applied to long term residents like the applicant.
The Exercise of the Discretion
66.I am obliged to have regard to the importance placed by the Government on the three primary considerations and to adopt a balancing process that takes into account all relevant considerations. In undertaking that balancing, I am very conscious of the applicant’s appalling criminal record and the underlying conduct that he has engaged in. Even regarding the risk of re-offending as being quite low the nature, frequency and seriousness of the applicant’s offending is, in my view, of such weight that the proper exercise of the discretion requires the cancellation of the applicant’s visa. I am firmly of the view that the issue of protecting the Australian community would ordinarily warrant deportation, as would the expectations of the Australian community.
67.Absent the considerations raised by the position of K the present decision would have been relatively straightforward. I have given much anxious consideration to her position and whether, having regard to her position, I ought make a decision that would permit the applicant to remain in this country. I accept that the Australian community also expect compassion, especially to someone like K who is as much a victim as is R. That she would be obliged to choose between her husband and her family and between a strange country and her home seems to me to be a terrible choice.
68.Nonetheless I am afraid that I cannot overlook the need to protect the community from persons like the applicant. In my view, having balanced the various considerations that I have discussed, the balance favours cancellation of the applicant’s visa.
69.In my view the decision under review ought be affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
Signed: ......................Signed................................................
Lynne Stalley, Administrative AssistantDate of Hearing 23 October 2006
Date of Decision 31 October 2006
For the Applicant Mr F Syme
For the Respondent Mr J Lo, Clayton Utz
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