Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1061

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1061

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1032

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mohammed Azar

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date24 October 2005

PlaceSydney

Decision The matter is remitted to the respondent with a direction that the applicant not be refused a subclass 832 visa on the ground that he fails the character test.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – visa-ex – on-shore visa application refusal – application fails the character test on the basis of his past and present criminal record  and past and present criminal conduct – applicant has been convicted of terms of imprisonment totalling over 12 months – examination of the applicant’s criminal record – examination of his family situation in Australia – discretion that the tribunal may exercise where the applicant fails the character test – role of networks in deterrence - necessity to balance the protection and expectations of the Australian community against the hardship to the applicant in having to return to Fiji – found that on balance the applicant has overcome his heroin addiction, he has plans for the future including a firm offer of an apprenticeship, the risk of recidivism is low, the applicant is aware that any further law-breaking will unfailingly result in the cancellation of his visa, there would be hardship to the applicant if he had to return to Fiji because he came to Australia as a toddler and has never been back – held that the discretion should be exercised in his favour – the matter is remitted to the respondent with a direction not to refuse the applicant a subclass 832 on the ground that he fails the character test.

Migration Act 1958 ss 499, 501, 501(1), 501(6)(a), 501(6)(c)(i)

REASONS FOR DECISION

24 October 2005	Professor GD Walker, Deputy President
Summary

1.      The applicant, Mohammed Azar was born in Fiji on 30 October 1983 and is aged 22. He is a citizen of Fiji.  He first arrived in Australia on 21 April 1985.  Between 2001 and 2004, he committed a number of criminal offences including larceny, shoplifting and common assault, for which he received terms of imprisonment totalling over 12 months.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, has refused Mr Azar an special eligibility (residence) (close ties) (subclass 832) visa on the ground that he fails the character test because of his past and present criminal record and past and present criminal conduct and because he has a substantial criminal record.  That is the decision to be reviewed by the tribunal.

Background

3.      Mr Azar was born in Fiji on 30 October 1983 and is aged 21.  He is a citizen of Fiji.  He first arrived in Australia with his parents and brother on 21 April 1985 on a three weeks visitor visa on his mother’s passport.  On 18 May 1985 he was granted a long stay visitor visa.  On 21 June 1990, his father, Mohammed Zahid, applied for a protection visa, naming the applicant as a secondary applicant, however this was refused on 27 June 1994 and the decision affirmed by the Refugee Review Tribunal (“RRT”) on 25 January 1995.  On 4 May 1995, he was granted a processing entry permit allowing him to remain in Australia until 19 March 1996.  On 15 March 1993, Mr Zahid applied for a family residence (subclass 806) visa, including the applicant as a secondary applicant, which was refused on 20 December 1999.  That decision was appealed and on 26 February 2003, the Full Court of the Federal Court remitted the matter back to the Migration Review Tribunal (“MRT”) who, on 21 November 2003, affirmed the original decision to refuse the family residence visa.

4.      Between 2001 and 2004, Mr Azar was convicted of the following criminal offences, according to a Federal Police certificate (G p36):

Court	Date	Offence	Court Result
Campbelltown Children’s Court	23 April 2001	1. Shoplifting	1. 10 Hours Community Service Order Cumulative
2. Break and Enter with Intent to Steal	2. 50 Hours Community Service Order
Campbelltown Children’s Court	22 October 2001	1. Larceny	1. 50 Hours Community Service Order
2. Goods in Personal Custody Reasonably Suspected Being Stolen	2. Without Conviction:  12 Months Probation
1. Enter Enclosed Land not Prescribed Premises without Lawful Excuse	1. Without Conviction:  12 Months Probation
Liverpool Local Court	11 January 2002	Shoplifting	Fined $500
Liverpool Local Court	05 February 2002	Never Licensed Person Drive Vehicle on Road	Fined $500
Liverpool Local Court	02 May 2002	Enter Prescribed Premises of any Person Without Lawful Excuse	Fined $500
Liverpool Local Court	09 May 2002	1. Shoplifting	Imprisonment 12 Months Commencing 07/05/02 Non Parole Period 6 Months. **Appealed** Campbelltown District Court 01/08/02 Conviction Confirmed.
2.  Shoplifting	Imprisonment 12 Months Commencing 07/05/02.  Non Parole Period 6 Months. **Appealed** Campbelltown District Court 01/08/02 Conviction Confirmed.
3. Shoplifting	Imprisonment 12 Months Commencing 07/05/02.  Non Parole Period 6 Months. **Appealed** Campbelltown District court 01/08/02 Conviction Confirmed.
Liverpool Local Court	09 May 2002	Larceny (3 Courts)	Imprisonment 12 Months Commencing 07/05/02  Non Parole Period 6 Months. **Apealed** Campbelltown District Court 01/08/02 Conviction Confirmed.
Liverpool Local Court	24 Jul 2003	1. Common Assault	1. 2. On Both Charges: Section 9 Bond.  To be of Good Behaviour for 6 Months.
2. Larceny
Parramatta Drug Court	15 October 2003	1. Common Assault	1. Imprisonment 7 Months.  Non Parole Period 3 Months
2. Larceny	2. Imprisonment 9 Months.  Non Parole Period 3 Months
3. Shoplifting	3. Imprisonment 9 Months.  Non Parole Period 3 Months
Fairfield  Local Court	27 April 2004	Shoplifting	Imprisonment 3 Months Commencing 24/04/04

5.      Mr Azar was released from prison on approximately 24 July 2004 and immediately detained at the Villawood Immigration Detention Centre, New South Wales.

6.      On 1 November 2004, whilst in Villawood, Mr Azar lodged an application for a special eligibility (close ties) visa with the Australian Capital Territory regional office of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) (G p17).  He was subsequently released from Villawood on a bridging visa E. On 1 February 2005, the applicant was notified by DIMIA, care of his solicitor, Mr Christopher Levingston, that the department was considering refusing his visa on the ground that he failed the character test because of his substantial criminal record and that in making the decision, the Minister or his delegate would be considering his criminal history and any comments that he had to make in support of his application to remain in Australia (G p43).

7.      Mr Levingston responded by letter of 14 February 2005 (G p39).  He conceded that his client fails the character test because of his criminal record, brought on by his use of illicit drugs.  He submitted that his client was now drug-free and that his client would not re-offend because he had ceased using drugs.  He also submitted that whilst the applicant’s criminal conduct was serious, the nature of most of his crimes were victimless misdemeanours “which have significant nuisance value” (G p40).  He also submitted that his client was also “as much a victim of illicit drugs as he is a person who has also victimised others through his crimes” and that should his client be allowed to remain in Australia, he would “put his affairs in order” and make a useful contribution to Australian society (G p41).

8. On 20 May 2005, a delegate of the respondent decided to refuse Mr Azar’s special eligibility visa because of his substantial criminal record and the high chance that the applicant will re-offend and having exercised her discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse his visa.  Mr Azar was notified of this decision on 9 August 2005 and on 12 August 2005, lodged an application for a review of that decision by the tribunal.  Upon notification of the decision, the applicant was detailed at Villawood, where he is currently being held.

9. At the hearing, the applicant was represented by Christopher Levingston, solicitor, Christopher Levingston & Associates, and the respondent was represented by Therese Quinn, solicitor, Phillips Fox, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501(G) of the Migration Act 1958 (“the G Documents”) taken into evidence as Exhibit A1, together with the evidence tendered by the parties at the hearing. Oral evidence was given by the applicant and Mohammed Zahid.

Issue

10.     In his statement of facts and contentions (Exhibit A2), the applicant’s solicitor conceded that Mr Azar fails the character test because of his substantial criminal record.  The remaining issue for the tribunal is therefore whether the discretion not to refuse his visa should be exercised in his favour.

Evidence

11.     At the hearing, Mr Azar said that he had done well at primary school, and had enjoyed it, and had continued to do well at Hurstville Boys’ High School until grade 9.  He had a good academic record, and was heavily involved in soccer and running.  When he was in Year 9, however, his family moved and he transferred to Ashcroft High School at Liverpool.  There he knew nobody but continued to play soccer and basketball with some success.  In soccer he was in the first division of the State League.

12.     Eventually, however, he fell in with a group of friends who, unknown to him, were involved in drugs and crime.  His first encounter with heroin occurred when he was in Year 11 at the age of 17, in 2001.  When he and some friends were on the school oval after classes one day, an older pupil named Eric produced a substance and proceeded to heat it in a foil and inhale the smoke.  He denied that it was heroin and urged Mr Azar to try it, which he did.  His next encounter with heroin occurred two weeks later, after which time he drifted into a group who were smoking it all the time.  It made him feel invincible, and although he knew it was illegal he smoked it every day after school.  He lost interest in sport and began stealing to buy drugs to support his habit, which was costing him over $1,100 per week.  He commonly shoplifted Panadol, which he resold to a convenience store for about one-quarter of its retail value.  He said he had committed many more thefts than are recorded on his record of convictions.

13.     His first custodial sentence, which resulted from a plea of guilty to charge of shoplifting, was for 12 months of imprisonment, of which he served six months, a month at Windsor and the remainder at Oberon.  There was a rehabilitation course offered at Oberon, but it related to alcohol, and he did not drink.  He also took a short course on narcotics of two days’ duration but did not benefit greatly from it.

14.     Throughout that period, when he was not in custody, he lived at home, but continued to see the same group of friends who tried each time to “bring me down” by renewing his dependence on heroin.

15.     His conviction for assault on 24 July 2003 arose from an occasion on which he entered a real estate agency seeking to sell stolen perfume.  When they refused to buy any, he seized a mobile phone, ran away and hid.  The owner, however, found him and with the aid of some neighbours dragged him back to the shop.  He resisted arrest and in the struggle said that he suffered a black eye, of which he complained to the police.  He pleaded not guilty but was convicted and placed on a section 9 bond.  His seven months’ imprisonment sentence for assault recorded on 15 October 2003 related to the same offence, presumably as a result of breach of the bond.

16.     The conviction for shoplifting on 27 April 2004 also appears to have been an older matter and it was not disputed that he has been convicted of no new offences since 15 October 2003.

17.     It should be pointed out that the Federal Police conviction record that was used in this case (G p36), generated by a computer name search, was not entirely satisfactory and appears to have contained one or more errors.  The State conviction records were not available.  Nor were there any sentencing comments, as the convictions were at Local Court level and the magistrate’s remarks are not normally supplied.

18.     He had never discussed migration matters with his parents and was shocked to learn that he had made himself liable to deportation.  If he had known that earlier, he might have been deterred from using heroin in the first place, although he acknowledged that he was under heavy peer pressure and could not be sure that he would have resisted.

19.     During his last period of incarceration he managed to break his craving for heroin and built himself back up to physical fitness.  Although he was addicted from early 2001 to 2004, he is adamant that he will not relapse because he realises he is getting older and he does not want to be dragged down by drug-using “friends”.

20.     As he would soon be 22, he had to acknowledge his fault and make a new start.  He was willing to take urine tests to prove that he was drug free, but no tests had been administered at Villawood.  He had now completely broken with his former group of friends and if he saw them in the street, he would walk the other way.

21.     His employer at SSB Marble has said that he can have his job back any time he likes.  Before being detained he had investigated starting an apprenticeship as a stonemason.  He has his school certificate and ascertained that he could enrol at Wetherill Park TAFE, or alternatively at Miller TAFE.  He had intended to begin his apprenticeship and would act on that intention if allowed to remain in Australia.  He also wants to return to his sporting career, an area of endeavour at which he has done well and which helps his standing in the community.  He also wants to set an example for his brother, aged four.

22.     Mr Azar has never returned to Fiji since coming to Australia at the age of 18 months and has no idea what it is like.  He does speak Hindi but says he has no family there and does not know what he would do.

23.     The applicant’s father Mr Mohammed Zahid said he first learned that his son was addicted to heroin when he was 17.  He and his wife had thought something was wrong and had asked a family friend for advice.  The friend had told them to search his room and see if they could find any telltale items such as bent spoons or foils.

24.     He had begun to break the law when at high school at Liverpool.  Mr Zahid had spoken to the principal, who had told him there was not a great deal he could do to help because it was a difficult area.  At one stage after leaving school his son had commenced a metal-working apprenticeship, but at that stage he was addicted and had “wagged” work and his classes.  But he had worked conscientiously once he began with SSB Marble after coming out of Villawood.  Mr Zahid used to drop him at work and pick him up every day.  His employer had said he would give him an apprenticeship, that he was a good worker and learned quickly.  Mr Zahid said his son now has the addiction beaten and no longer has any need for heroin.  Admittedly he had said that once before but relapsed, but this time he is convinced it is different.

25.     Throughout the period when he was coming before the courts he had been living with his parents except when he was in jail, apart from the time when he was working at SSB Marble.  During that time he lived with his aunt, Mr Zahid’s sister.  Although Mr Zahid saw him only every two weeks or so when he was living with his aunt, she kept him informed of what he was doing and where he was going.

26.     If his son were to be required to return to Fiji, he would not be able to do anything for him.  Mr Zahid earns about $2,000 per month but must make mortgage payments of $1,200 out of that.  His wife earns $400 a week.

27.     Mr Zahid has no family at all in Fiji, but his wife has some aunts and uncles.  They however, can barely support themselves and the applicant would not be able to stay with them if he were to return to Fiji.

Application of the Law and findings of fact

28. As was stated above, there is no dispute, and I find accordingly, that the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a substantial criminal record, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Azar was sentenced on 9 May 2002 to 12 months’ imprisonment for larceny and shoplifting, on 15 October 2003 to seven months’ imprisonment for assault and nine months’ imprisonment for larceny and shoplifting and, on 27 April 2004, to three months’ imprisonment for shoplifting. The issue for the tribunal then is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to refuse a visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

29.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

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

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

30.     Paragraph 2.6 provides examples of what the Government views as serious offences.  These include, in subparagraph (a) drug-related crimes, (l) serious theft, and (n) any other crimes involving violence or the threat of violence which cause concern to the welfare and safety of the Australian community.  Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

Protection of the Australian Community

31.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case the applicant engaged in continuous criminal conduct from 2001 until 2004 including assault, larceny and shoplifting. In her statement of facts and contentions (Exhibit R1), the respondent submitted “While each individual offence might not be considered serious, the substantial number of offences committed and the length of the sentences imposed tend to indicate the applicant is a serious offender”.  In his submission to the department of 14 February 2005, Mr Levingston submitted (G p41):

As I indicated earlier, this applicant is as much a victim of illicit drugs as he is a person who has also victimised others through his crimes.  The crimes that he has committed are although objectively serious nevertheless do not easily fit into the scheme of very serious conduct.  These offences although in effect taking up policing resources and court resources nevertheless do not pose any particular risk to the community …

32.     Ms Quinn conceded at the hearing that the crimes were not of the gravest kind, but said their seriousness arose out of the fact that there had been repetitive offending episodes over a period of some three years.

33.     An addiction to drugs does not mitigate the seriousness of a criminal record.  Probably the major portion of all crime committed today is in some way related to drugs.  Nevertheless if, as in this case, an offender has committed many instances of petty theft to support an addiction, the risk of recidivism may be greatly reduced if the subject has been able to overcome the addiction.

34.     Paragraph 2.10 of Direction No 21 states that a person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. The applicant is a repeat offender who has been committing crimes for a number of years.  Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.  The respondent submitted that despite spending time in prison in 2002 and 2003, the applicant still went on to re-offend in 2004.  Mr Levingston submitted to the department (G p40):

Given that there is a nexus between the drug lifestyle and the offending behaviour, it is follows therefore that if the drug problem is addressed then the offending is likely to cease.  I am informed that my client has ceased using drugs and on that basis it is very likely that the conduct will not be repeated.

35.     In his evidence, Mr Azar said that he had broken his addiction to heroin while in custody a year ago and had severed all connection with the drug milieu.  His father confirmed that assertion.  Ms Quinn pointed out that there was no independent evidence that he was no longer addicted and that he could therefore relapse.  That is true, but there is no evidence to contradict his assertion and he expressed himself more than willing to undergo urine tests to confirm that he was now drug-free.  On balance I think it likely that he has shaken off his drug addiction.

36.     The fact that he appears to have been able to do that on his own and without methadone, while incarcerated in a prison where drugs were available, says something about his underlying determination and character.  His success as an athlete also constitutes some evidence that he has powers of persistence and self-discipline.  His plans for starting his apprenticeship as a stonemason were well advanced before he was taken into detention in August 2005 and cannot be regarded as mere assertions made for forensic purposes.  He has a firm offer of an apprenticeship in a trade in which he has proved he can learn quickly and work diligently.  In my view the risk of recidivism in this case is low.

37.     The operation of general deterrence cannot be disregarded in such cases, however, and it is likely that refusing the applicant a visa would have some deterrent value for young people who might otherwise be tempted to follow in his footsteps.  Recent social science research on immigration patterns and mechanisms suggests that deterrent pressures can actually filter back to immigrant countries of origin in a manner that had not previously been appreciated.  Dr Philip Martin of the University of California at Davis has described how that process can occur through networks, informal channels of communication that transport money and information from the host country to the country of origin.  As the direction of the flow is away from the host country, such as Australia, we tend not to see it.  But that counterflow stimulates interest in immigration issues and transmits relevant signals about such matters as whether a host country seriously enforces its immigration and deportation laws (see e.g. P Martin, Promise Unfulfilled:  Unions, Immigration and Farm Workers, Cornell University Press 2003, Ch. 1).

38.     While deterrence should be taken into account, in this case I think its significance is outweighed by the evidence of rehabilitation, the low likelihood of recidivism and the relatively less serious nature of the applicant’s criminal record.

Expectations of the Australian Community

39.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

40.     The seriousness of the applicant’s record in this case stems mainly from the repetitive nature of his offending and the fact that he was sentenced to terms of imprisonment exceeding 12 months.  On its own that would justify visa refusal, but the evidence shows that the applicant has made real progress and has a proven ability to overcome obstacles with focus and determination.  He is aged 21 and his law-breaking covered a period of three years.  In the circumstances I think the community would not be averse to giving the applicant a chance to prove that he can live up to his promises.  That would, of course, be on the clear understanding, which I have no doubt will be forcefully communicated to him, that any further law-breaking in the future will unfailingly result in new proceedings to cancel his visa that are likely to have an outcome that is unfavourable him.

The Best Interests of the Child

41. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2).

Other Considerations

42.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.

43.     The applicant gave evidence that all his family live in Australia and that they will suffer emotional hardship if he were returned to Fiji.  The applicant himself would suffer more than the usual degree of hardship because he has never returned to Fiji since coming to Australia at the age of 18 months, has no family there and, no work connections or opportunities and no idea of what the country is like.  Such considerations are of only secondary importance, but in view of the conclusion I have reached in relation to the primary considerations of community protection and expectations, I think the discretion should be exercised in the applicant’s favour.

44.     The matter is remitted to the respondent on the basis that he not be refused a subclass 832 visa on the ground that he fails the character test.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date of Hearing  17 October 2005
Date of Decision  24 October 2005
Representative for the Applicant               Mr C Levingston, Solicitor
Representative for the Respondent          Ms T Quinn, Solicitor