QX06/8 and Department of Immigration and Multicultural Affairs

[2006] AATA 543

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 543

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/280

GENERAL ADMINISTRATIVE DIVISION		)
Re		QX06/8

Applicant

And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date22 June 2006

PlaceBrisbane

Decision The cancellation decision under review is set aside. The Tribunal decides in substitution the discretion to cancel the applicant’s temporary visa pursuant to s 501 of the Migration Act 1958 should not be exercised.

.................[Sgd]............................

SENIOR MEMBER

CATCHWORDS

MIGRATION – visa cancellation – applicant a citizen of New Zealand – applicant convicted of serious sex offence – character test – substantial criminal record – Direction 21 criteria – discretion should be exercised to allow the applicant to remain in the country

Migration Act 1958 s 499, 500, 501

Re Stone and Minster for Immigration and Ethnic Affairs (1981) 3 ALN N129

REASONS FOR DECISION

22 June 2006	Senior Member B J McCabe
introduction

1. The applicant is a New Zealand citizen who has resided in Australia under a temporary visa since 1996. He was convicted of a number of sexual offences in 2005 and sentenced to a period of imprisonment. The charges all arose out of the applicant’s interaction with one other person over a two month period. The respondent decided to cancel the applicant’s visa pursuant to s 501 of the Migration Act 1958 (the Act). He was detained after he completed his sentence of imprisonment and will be sent back to New Zealand in due course if the decision under review is affirmed.

2. The applicant has asked the Tribunal to reconsider the respondent’s decision to cancel the visa. The right to seek a review is provided for in s 500 of the Act. For reasons I will explain, I have decided to set aside the decision under review. The applicant should be permitted to remain in Australia.

3. In the reasons that follow, I will refer to the applicant as “Mr QX06/8” or “the applicant”. Given the sensitive nature of the evidence, I have decided to make an order under s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting publication of the transcript of the proceedings to anyone but the parties, their legal advisers and the Tribunal’s staff.

the material before the tribunal

4.      The Tribunal was provided with the relevant portions of the respondent’s files. The bundle included the letter containing the reviewable decision dated 27 April 2006. Mr Chand, for the respondent, also tendered a report from Ms Sharmine Cuffe, a senior community correctional officer employed by the Queensland Department of Corrective Services. Mr Chand made it clear the respondent did not rely on Ms Cuffe’s conclusions and tendered the document on the basis that it contained a convenient record of the facts. I accepted it into evidence on that basis.

5.      Mr Rangiah for the applicant tendered written statements made by the applicant, his wife and his brother. He also tendered the reports of Drs Curtis and Frey. The applicant and Dr Curtis gave evidence at the hearing. I note the file tendered by the respondent also contained statements from other family members and the remarks of the judge who sentenced the applicant to gaol.

the factual background

6.      The applicant is 45 years old. He was born in New Zealand. He entered Australia on a subclass 444 (special category) visa on 23 November 1996. He has remained in Australia since that time.

7.      Mr QX06/8 has been married for 23 years. He has four children. Three of the children are under 18 years of age. The applicant’s wife and children are Australian citizens and reside with him in Brisbane. One of his brothers lives nearby with his family. The applicant and his brother are very close: their father died when the applicant was young and his brother – who is older – took on the parenting role. Another brother lives in New Zealand but Mr QX06/8 has not had contact with him for many years. The applicant says in his statement that he has not maintained relationships with any of his family or friends in New Zealand.

8.      The applicant works as a chef. He said in his evidence that he has never had any trouble getting work, and that he would quickly get work in Brisbane again if he were permitted to stay in this country. He acknowledged he could probably get work in New Zealand were he required to return there but pointed out the opportunities were more limited because he had no contacts, and because of the size of the market. He also pointed to the lower wages for chefs and the higher cost of living in New Zealand.

9.      The statements provided by family members and the evidence of Dr Frey in particular make it clear the applicant is a good family man who has strong relationships with his wife and children. Dr Frey’s report confirmed that Mrs QX06/8 and the two youngest children have been particularly distressed by the absence of Mr QX06/8 while he was in prison and by the prospect of the applicant’s removal from Australia.

10.     I turn now to the applicant’s convictions. Mr QX06/8 was convicted on 28 July 2005 in the Brisbane District Court of five counts of indecent dealing with a child under the age of 16. He pleaded guilty to the charges, so there was no need for a trial. The minor in question was an apprentice reporting to Mr QX06/8 as head chef. The offences all occurred during the latter part of 2002. Judge Samios sentenced Mr QX06/8 to two years and six months imprisonment to be suspended for three years after serving nine months in gaol.

11.     The sentencing judge noted a number of matters in the applicant’s favour. There was the timely plea of guilty, so the complainant was saved from the ordeal of a trial. His Honour pointed out the applicant did not have any previous convictions. His Honour also referred to the applicant’s health problems.

12.     Mr QX06/8’s health problems were discussed in detail in the evidence of Dr Curtis. Dr Curtis explained the applicant was traumatised by the onset of a number of conditions at or around the time the offences were committed. Dr Curtis says the applicant suffers from hypertension, angina, diabetes, lower back pain and impotence. Dr Curtis says the applicant’s mental state at the time of the offences was also affected by his wife’s serious health problems. There was evidence that the applicant may have believed his heart problems suggested he was destined to experience an early death like his father.

13. None of these factors diminished the seriousness of the offences, but they clearly impacted on the length of the sentence that was imposed. The maximum sentence for offences of this kind is 14 years imprisonment: see s 210, Criminal Code (Qld).

the legislative framework

14. Section 501(2) says the minister may cancel a person’s visa if the minister suspects the person does not satisfy the character test, and the person is subsequently unable to satisfy the minister that he or she meets the character test. The character test is set out in s 501(6). A person cannot satisfy that test if he or she has a substantial criminal record within the meaning of s 501(7). The applicant conceded he has a substantial criminal record, so the discretion under s 501(2) is enlivened.

15. Discretionary powers under the Act must be exercised in accordance with directions issued by the minister pursuant to s 499. In this case, the direction – which is binding on the Tribunal – is titled Direction: Visa Refusal and Cancellation under Section 501 – No 21 (the Direction).

16. Part 2 of the Direction deals with the exercise of the discretion under s 501(2). The Direction identifies three primary considerations but also identifies a number of secondary considerations which should be taken into account as part of a balancing process.

the primary considerations

17.     The three primary considerations are:

(a) protection of the Australian community, and members of the Australian community;
(b) the expectations of the Australian community; and
(c) the best interests of the child or children of the applicant.

(i) protection

18.     I turn firstly to the question of protection. The Direction says I should assess the risk to the community by having regard to the seriousness of the conduct, the likelihood it will be repeated and the deterrent value of cancellation.

19.     I note the Direction says sexual offences committed against minors are regarded as particularly serious. The fact the applicant had a supervisory role with respect to the complainant makes the offences even worse. But the Direction also says the decision-maker should have regard to the sentence imposed in respect of the crime. The Direction says the sentence is a good indication of the seriousness of the conduct. In this case, the sentence was at the lower end of the range open to the judge, which indicates the conduct – while serious - is not of the most serious kind. The sentencing judge had regard to the applicant’s good record, early guilty plea and health problems; I must consider the same matters. I am satisfied in all the circumstances that the conduct, while very serious, is nonetheless not so serious that the community is at risk. I do not think this consideration weighs heavily in favour of cancellation.

20.     The second matter to consider is the risk that the conduct might be repeated. Mr Chand acknowledged there was not a strong likelihood of the applicant re-offending. Even so, he relied on the decision in Re Stone and Minster for Immigration and Ethnic Affairs (1981) 3 ALN N129 which said (at N132):

…even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.

21.     Mr Chand said the conduct in this case was so serious, and the consequences of a further offence are so grave, the decision-maker should be less tolerant of risk.

22.     That approach seems fair enough as a matter of principle, but I cannot ignore the compelling evidence offered on behalf of the applicant which suggests there is virtually no danger of a repeat of the offending conduct.

23.     I refer in particular to the evidence of Dr Curtis. Dr Curtis is a psychiatrist engaged by the applicant to provide a report. He also gave evidence at the hearing. Importantly, his evidence was not available to the respondent at the time of the original decision. His credentials and expertise were not called into question. He has extensive experience in working with sex offenders and their victims. He said there was no danger that the applicant would re-offend. He said the offences were out of character and resulted from an unusual convergence of stressful events: the applicant’s health problems, Mrs QX06/8’s health problems, and other family problems. While Dr Curtis acknowledged it was possible the applicant would face other stressful events in the future, the applicant had developed insight into his own behaviour and had learned from his punishment. I asked Dr Curtis whether he would have any concerns if the applicant were to resume work as a chef and occupy a supervisory role with respect to young apprentices. Dr Curtis said he was not concerned at that prospect.

24.     Mr Chand invited Dr Curtis to agree that he could not guarantee the applicant would re-offend. Dr Curtis properly acknowledged there was no guarantee that anyone would behave in a particular way. But he insisted this applicant was no longer a risk to anyone.

25.     Dr Curtis’s evidence is clear, emphatic and unchallenged. I accept it. When seen in light of the applicant’s decision to plead guilty and the evidence of the applicant and his family as to his contrition, I am satisfied the risk of the applicant re-offending is negligible.

26.     The third matter to be considered is general deterrence. Mr Chand suggested other non-citizens might be deterred from committing similar offences if they knew they were liable to deportation in addition to a term of imprisonment. He may be right, but it is difficult to see that the deterrent effect of this decision would be significant. There was certainly no evidence as to any deterrent effect. In all the circumstances, I do not think this consideration weighs heavily in favour of cancellation.

(ii) expectations

27.     The second primary consideration is the expectations of the Australian community. The Direction points out that the Australian community expects non-citizens to obey Australian laws. It also points out that some conduct is so offensive that the community would expect an offender to be removed from this country.

28.     Members of the Australian community sometimes have a visceral reaction to those convicted of sexual offences involving minors. But one must consider how the community as a whole would react, presumably after it has been informed of all the circumstances.

29.     I have already noted that the conduct in this case is regarded as being particularly serious. Sexual offences against minors are repugnant to the community. But the community is also likely to have regard to the sort of factors taken into account by the sentencing judge when the applicant pleaded guilty. They would have regard to the evidence of Dr Curtis about the likelihood of further offences. They would also have regard to the effect on the applicant’s family (as evidenced by the statements supplied by various family members, and the report of Dr Frey) of what has already occurred, and what would occur if he were removed from Australia.

30.     I am satisfied the evidence – especially the evidence of Dr Curtis - would persuade reasonable members of the community that the applicant ought to be allowed to stay with this family in Australia and resume his career. The community would not expect that Mr QX06/8’s visa would be cancelled.

(iii) the best interests of the children

31.     The decision-maker must also have regard to the best interests of the applicant’s three children who are under the age of 18. All of the children are Australian citizens. The applicant and his wife have agreed that it would not practical for the family to accompany him to New Zealand if he were removed from Australia. The family has established roots in Australia, and a support network. The children are settled at school. If the applicant is to leave Australia, he will leave his family behind.

32.     The G documents included letters from the applicant’s children. They asked the authorities not to deport their father. That should probably be expected. The same could be said of the obvious distress of the children at the hearing. The evidence of Dr Frey about the impact of the proceedings on the children offered a more detached view. Dr Frey’s report suggested the applicant has strong and healthy relationships with all of the children. The older children have apparently come to terms with the applicant’s conduct, although the second oldest daughter (aged 17) in particular dreads the possibility that her father’s convictions will become known. Her performance at school has been affected by the worry associated with the convictions and the possibility of removal. The youngest daughter (aged 7) is not fully aware of her father’s conduct although she is deeply traumatised at the prospect of losing her father. Dr Frey made it clear that the applicant’s son (aged 14) was at a delicate stage. He had a strong bond with his father and had already developed behavioural problems at school in the absence of the applicant.

33.     I accept Dr Frey’s evidence, which was unchallenged. There is no question that the best interests of the children under 18 are served by their father remaining in Australia with the family. It follows the best interests of the children weigh heavily against a cancellation decision.

other considerations

34.     A careful weighing of the primary considerations suggests the applicant’s visa should not be cancelled. But the Direction says the decision-maker should also have regard to a range of other considerations which, individually, count for less than the primary considerations – but which might still tip the balance in some cases.

35.     The respondent acknowledged that the applicant’s family would be severely disrupted if he were removed from Australia. They will experience financial loss, because the applicant will be unable to support them adequately, and they will suffer serious emotional disruption. Dr Frey’s report on the members of the immediate family confirms this, although it is likely that the applicant’s brother and extended family will also experienced a sense of loss. The applicant’s relatives in New Zealand are not in contact with the applicant and there is no reason to believe they will be able to provide support or assistance.

36.     The other members of the applicant’s family are Australian citizens. The children have had little or no contact with New Zealand. The respondent says the family can minimise the disruption associated with deportation by moving to New Zealand, but that would give rise to disruption of a different kind.

37.     I note the applicant was not aware that there was a possibility of his visa being cancelled before he was approached by officers from the respondent.

38.     The respondent also argued the applicant has not demonstrated any evidence of rehabilitation and good conduct. The opportunities for him to display good conduct have been limited, given he remains in custody. The report from Ms Cuffe about the applicant’s disciplinary record in prison suggests he was generally well-behaved. The report from Dr Curtis also makes it clear the applicant has been rehabilitated. I note that evidence in particular was not available to the respondent when the original decision was made.

39.     Taken together, the secondary considerations suggest the applicant’s visa should not be cancelled.

conclusion

40.     After having regard to the primary considerations and the secondary considerations, the Tribunal sets aside the cancellation decision. The Tribunal decides instead that the discretion to cancel the applicant’s temporary visa should not be exercised. The applicant should be released from detention and permitted to return to his family.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  19 June 2006
Date of Decision  22 June 2006
The applicant was represented by Mr Rangiah, of Counsel.
The respondent was represented by Mr Chand, solicitor.