Re Cousens and Minister for Immigration and Citizenship
[2007] AATA 1426
•13 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1426
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1003
GENERAL ADMINISTRATIVE DIVISION ) Re William David COUSENS Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date13 June 2007
PlaceSydney
Decision The decision under review is affirmed. ...................[sgd]...........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – cancellation of applicant’s transitional (permanent) and absorbed person visas – applicant failed character test - applicant convicted of a number of violent offences including sexual offence – applicant disputed facts of criminal convictions – tribunal is not entitled to reach or express a view that the person was wrongly convicted but it may accept evidence contradicting the facts essential to the conviction – onus is on the person who seeks to challenge the facts essential to a criminal conviction or sentence – Direction 21 applied – deterrence considerations weighed against exercising the discretion in favour of not cancelling the applicant’s visas – applicant is not yet rehabilitated – community would view the applicant’s violent sexual offence as justifying visa cancellation in itself – primary considerations of community protection and expectations outweighed the other considerations and the interests of the children in this case – decision under review affirmed. …
RELEVANT ACT/S:
Migration Act 1958: ss 499(1), 499(2), 499(2A) 500(6B), 501, 501(2)(a) and (b), 501(6)(a), (c), (i), (ii) 501(7), 501(10)(a), 501G(1),
Direction No 21, Visa Refusal and Cancellation under s 501
Migration Reform (Transitional Provisions) Regulations
Crimes Act 1900 (NSW): s 556A
…
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673
Re Langat and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 93
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
…
REASONS FOR DECISION
13 June 2007
Professor GD Walker, Deputy President
Summary
1. The applicant, a citizen of the United Kingdom aged 56, arrived in Australia with his family at the age of nine years.
2. On 18 September 2003 the applicant was convicted of an offence and sentenced to imprisonment for four years and six months.
3. On 22 March 2007 the respondent cancelled the applicant’s transitional (permanent) and absorbed person visas. The applicant applied to this tribunal for review of that decision.
Issue
4. As the applicant conceded that he fails the character test in s 501 of the Migration Act 1958 (the Act) by reason of his criminal record (s 501(6) and (7)), the only issue is whether the discretion in s 501 should be exercised in favour of not cancelling the applicant’s visas.
5. At the hearing, the applicant was represented by Mr Shaun Kerrigan of counsel, and the respondent by Mr Lenny Leerdam of DLA Phillips Fox Lawyers. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person.
Relevant Law and Policy
6. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
7. “Substantial criminal record “ is defined in s 501(7)
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
8. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
9. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Basic facts
10. The applicant William David Cousens was born at Reading, England on 23 July 1950 and is a citizen of the United Kingdom. He first entered Australia with his family on 31 January 1960 and was a permanent resident of the Commonwealth on arrival. On 1 September 1994, Mr Cousens was granted a transitional (permanent) visa under the Migration Reform (Transitional Provisions) Regulations (the regulations), which provided for the grant of such a visa to certain persons who held either a permanent entry permit or certain other visas and authorities. On 26 October 2006, it was determined that the applicant is likely also to hold an absorbed person visa.
11. On 20 March 2007, a delegate of the minister determined that the applicant did not pass the character test in s 501 of the Migration Act 1958 (the Act) by reason of his substantial criminal record (s 501(6)(a)) and exercised her discretion to cancel his visas under s 501(2) of the Act. On 26 March 2007, Mr Cousens applied to this tribunal for review of that decision.
The applicant’s evidence
12. In his oral and written (Exhibits A3, A4) evidence, the applicant said that he is the eldest of three children born to Bill and Joan Cousens, who migrated to Australia from England in 1960 and now live in Forster, Victoria. After obtaining his intermediate certificate at Orbost High School, Victoria, he commenced a technician training course with Telecom, which he completed in the allotted five years. He continued to work for Telecom as a technician at the Orbost telephone exchange until December 1985.
13. In late 1985, he moved with his family from Orbost to Bateman’s Bay, New South Wales, where he worked in the construction industry. In 1969, he married Lynette Metcalfe and they had three children, a son, Shane, who was born in 1970, and two daughters, Stacey (born 1972) and Jenny (born 1975).
14. The family moved from Orbost because his wife informed him that she had had an affair and thought that she was pregnant. As Mr Cousens had undergone a vasectomy, and that fact was widely known in the town, it would have been obvious that a child born at that time could not be his, so they agreed to move away and raise the child ostensibly as their own. The couple separated permanently in 1990 and subsequently divorced.
15. That year the applicant commenced a de facto relationship with Karen Cochrane and lived with her in Bateman’s Bay until early 1997. During that time, there were two incidents of domestic violence, one in 1992 and the second in 1997, which resulted in the break-up of the relationship.
16. The applicant had assaulted his wife in Orbost when she had told him about her affair, but no charge was laid. The prosecution for the 1992 assault started the applicant’s criminal record, which comprises the following offences:
§27 November 1992, Bateman’s Bay Local Court
- Assault: s 556A, good behaviour bond of 12 months;
§7 December 1996, Bateman’s Bay Local Court
- Driving with more than the prescribed maximum concentration of alcohol: fined $500, disqualified for six months;
§30 April 1997, Bateman’s Bay Local Court
- Assault occasioning actual bodily harm: 100 hours community service order;
- Maliciously damage property: fined $250;
- Assault:s 558, recognisance for 12 months
§12 April 2003, Bega District Court
- Inflicting actual bodily harm with intent to have sexual intercourse with the victim: sentenced to imprisonment for four years and six months, non-parole period 3 years.
17. The applicant said he had also been convicted of driving under the influence of alcohol in 1983. That conviction does not appear on his New South Wales criminal record, and is presumably recorded in Victoria. The applicant told the clinical psychologist Mr Kevin Wallis that he was also fined $300 and lost his driver’s license for six months for a driving under the influence conviction in 1977.
18. According to the Department of Corrective Services psychological report of 31 May 2006 (Exhibit A4), he assaulted his wife on two occasions (at p4). At the hearing he said he could only recall one such assault.
19. In relation to the 1992 assault, he said that after he came home late one night, Karen struck him four times while he was in bed, causing him to suffer a black eye. He pushed her away, and she suffered a bruised cheek. He pleaded guilty to the charge and they tried to continue with the relationship as before. They sought counselling but it proved unproductive.
20. The 1997 convictions resulted from a domestic argument. Karen attacked him with a kitchen knife, which he was able to twist from her grasp so that it dropped on the floor. Karen’s 8-year-old daughter picked it up, and when she “came at” him with it, he struck her, bruising her cheek. The charge of assault occasioning actual bodily harm related to the child. The police did not believe his story and he was convicted. Shortly afterwards he left Karen.
21. He described Karen as being extremely jealous and said she had twice been convicted for assaults against him, being placed on a bond on one occasion. He did not recall the outcome of the other case.
22. His account of the events leading to his main conviction in 2003 is radically at odds with that contained in Goldring J’s sentencing remarks (G pp85-86). At the hearing he said that he had accompanied the victim (to whom I will refer as “Heather”) to her house for the purpose of sexual activity. They began “playing around”, become “amorous” and in due course disrobed. In the course of administering fellatio, Heather bit his member, causing him to strike out automatically in pain. He then went to sleep and was arrested the next morning. He described the circumstances to his solicitor, who gave him no advice other than encouraging him to plead guilty.
23. He said in his statement that he was regretful and remorseful about the incident and sorry about the effects on the victim. He thought being in prison had allowed him to reflect on his previous life and how he could live if he were to remain sober, and what he was like when not sober. His outlook on life has now improved somewhat and he has a more positive view about everything, despite being in jail. He intends to remain sober and to continue with counselling and support groups.
24. If released he plans to move to Canberra to stay with his daughter Jenny and her two children and his son-in-law, who works for the Federal Police Protective Service and who visited him often in prison with Jenny. His other daughter Stacey would also strongly support him and he has an ongoing relationship with his son who also strongly supports him and his goal of remaining in Australia.
25. While in prison he completed three rehabilitation courses, one on anger management, one in drug and alcohol relapse prevention and a pre-release course. He had incurred no charges while in prison.
26. If permitted to remain in Australia he would remain focused and committed on continuing his life-long rehabilitation. His attitude to violence is now that it should not occur and should be avoided at all costs, and realizes that he has to practice and be mindful of avoiding situations of conflict.
27. He had not undertaken a sex offender program while in jail because it would have entailed associating full-time with sex offenders. In particular, he would find it stressful to be forced to associate with child molesters and thought it would be inadvisable from an anger management point of view.
28. He did offer to undertake such a program immediately on release and through his daughter made arrangements to attend such a program in the Australian Capital Territory, which would enable him to attend regularly but to remain out in the community. The parole board declined to permit him to transfer his parole to the ACT, however, because it would not agree to parole an untreated sex offender. He therefore elected to serve out the remainder of his sentence.
29. The applicant said he does not regard himself as a sex offender, although he is classified as one. He knew he had to take the course as part of his rehabilitation, but denies committing a sex-based offence. At first he denied that his belief that he was not a sex offender was part of the reason why he refused to undertake the course while in jail, but later admitted that it was indeed part of the reason. Nevertheless, he is still willing to undertake the course immediately on his release and has the support of his family to assist him in attending it.
30. He conceded that in relation to all his convictions for offences of violence, he considered that he had been reacting to provocative behaviour by the victim. Asked how that could be reconciled with his professed acceptance of responsibility for his crimes, he replied that there was no excuse for his offences, no matter what the provocation.
Other witnesses for the applicant
31. The applicant’s younger daughter, Mrs Jenny McLeish, gave oral and written (Exhibit A5, G p79) evidence. She stated that the possibility that her father’s visa might be cancelled had been extremely upsetting for her and for her family, as they had only had limited contact with him for the past four years while he was in custody, and that had taken away his ability to be a grandfather to her two children. Her daughters barely know their grandfather and if he is sent back to England, they may never get to know him. Her elder daughter loves to hear from her grandfather when he calls and enjoys the time she can spend with him when they are able to visit him. It worries Mrs McLeish to think how they are going to explain to her that her grandfather will not be around for her when she needs him.
32. She had happy childhood memories of her father, although the relationship had become more distant when she was a young adult and after her parents divorced. Nevertheless, her relationship with her father was improving for several years before his conviction. She believes her father has reformed during his prison sentence and that he has shown remorse by pleading guilty to the charges that he faced. She feels he has been a good citizen but acknowledges his “unfortunate addiction to alcohol”. She has no fears that he will re-offend as she knows that he has been deeply affected by losing family relationships and hopes to correct the past by starting afresh, without alcohol, to improve the time with his children and grandchildren.
33. If he is released it is planned that he will move to Canberra and live with her and her family for a period so that he can make up for the time lost with them and his grandchildren. They hope to aid him in his readjustment to the community and will provide encouragement to him to remain alcohol-free and to improve family relationships. In preparation for his release, her husband had been able to secure him employment in the construction industry.
34. Mrs McLeish entertains fears for her father’s future if he is removed from Australia because direct support would only be available for him here. He has had no contact with anyone in the United Kingdom since he left there at the age of about 10. The cost of flying their family of four to England to visit him “is not something that is easily affordable for a single income family that has current mortgage repayments and the future educational fees that will be required to educate our two daughters” (Exhibit A5).
35. Mrs McLeish did not indicate whether or not her daughters have any contact with their maternal grandmother or with their paternal grandparents.
36. She knew little about her father’s criminal record other than that he had a conviction for driving under the influence and some others, but she did not know what they were or what kinds of charges were involved. She had not asked her father about them, believing that it is up to him to tell her. She did not think it was important to know the details. Even if she knew that one of the convictions related to violence against a child, she would still offer him her full support.
37. Mrs McLeish said she was aware that the main assault conviction was alcohol-related. She attended court on the day of the hearing but could not spend long in the courtroom itself because she had a young child with her. Her husband was in court, however, and explained to her essentially that the applicant had committed an assault when he was drunk and had pleaded guilty. He did not tell her the contents of Heather’s statement, and she was not really interested. All she knew about the episode came from her father, and all he had said was that he did not recall a lot about it.
38. The applicant’s elder daughter Stacey Cousens conducts her own hairdressing business at Batehaven, New South Wales. She stated (Exhibit A6) that her relationship with her father is very strong and “I believe this case to be an injustice both to my father and to the rest of our family”. She knew her father had a criminal record and had not been the most upstanding member of the community, but he had always been the most loving father.
39. Throughout her childhood, her father had fought a long battle with alcohol and she believed that had led to the breakdown of her parents’ marriage, which resulted in her rebelling and leaving home at 16.
40. “My father has currently been serving a four year sentence for a crime he has committed but has no memory of due to his intoxication at the time”, she wrote. He has been undergoing rehabilitation while serving his sentence and looks forward “to making up for the lost time with his children, grandchildren and I hope with the grace of god his parents”.
41. She had suffered from stress as a result of the present proceedings and feared that not being able to see her father for a long time might cause her to suffer a bout of depression, a condition to which she had previously been subject. She fears for her father’s welfare in a country he left as a small child without his family network to support him. She believes he will continue his alcohol reform outside prison and although the transition to normal society will be stressful, she believes financial and emotional support from his family will get him through that period.
42. She had been aware that he had been the subject of some charges in Victoria, and had learned of more when she returned from overseas, but did not know their exact nature. She thought there was an incident involving a neighbour and knew that he had been charged over an episode with Karen at Bateman’s Bay, although he had not told her about it.
43. The applicant had told Ms Cousens about the main charge in about April 2002 or 2003. He said it involved an assault but could give no other information because he could not remember. He did not say who the victim was, but she found out a couple of hours later from a client who told her about Heather.
44. While he was in jail, she visited him at Goulburn as much as possible, and also at Long Bay. She had told him that she had often seen Heather socially at the golf club, dancing and socialising, but had not spoken to her. She resented the fact that Heather was out and about “when she wasn’t supposed to be. … He did four and a half years in jail because of her”.
Psychological evidence
45. Three psychological reports were tendered, one dated 18 September 2003 by Mr Kevin Wallis (Exhibit R2), one dated 31 May 2006 by Rod Schon and Elzbieta Kobylinska on behalf the Department of Corrective Services, Long Bay (part Exhibit A4) and one by Mr John Jacmon, OAM, dated 7 May 2007 (Exhibit A7).
46. The report by Mr Wallis relevantly states that the applicant had known Heather for about two years before the offence. On two occasions before the night of the offence, he had returned to her house after leaving the club where they had been drinking together to partake of some further alcoholic beverages. On those occasions the applicant said nothing untoward happened.
47. The applicant admitted the offence, but denied the insulting language or demanding sexual contact from Heather. He said he could not recall how he came to be in her bed.
48. His account of the 1985 assault on his wife differed from that which he gave at the hearing. He told Mr Wallis that his wife had wanted him to move out of the family home in Orbost so that she could continue her relationship with her paramour. But the latter had not wanted to leave his family and the affair terminated.
49. The applicant had expressed remorse for the victim and felt ashamed that he had let his daughters down. His life had seemed to change from the time his wife had told him about her affair in 1985, which was the first time he had hit a woman. After separating from his wife, he had entered into a relationship with another woman (presumably Karen). “He described their relationship as argumentative and during arguments he said he would loose (sic) his temper and physically strike out at his female partner” (p3).
50. Using the Static-99, a scale used to estimate actuarial risk of sexual or violent recidivism, Mr Wallis thought the applicant was in the moderate to low risk group. He recommended that he be encouraged to take the sex offender’s rehabilitation program at Long Bay.
51. The 31 May 2006 Department of Corrective Services evaluation reported the applicant as saying that he had occasionally socialised with Heather over a period spanning approximately 10 years, not two. He had gone to her house on the night of the offence believing that it was for sexual purposes. He said Heather bit him in the manner already described and that he reacted spontaneously by punching her with a closed fist, blackening her eye and marking her cheek. When he was arrested at her home the next morning, he pleaded guilty to the charge without ever questioning it at any time. Nevertheless, he had always maintained that the sexual contact was consensual.
52. He told the psychologists that he began heavy drinking in about 1977 and had twice assaulted his wife. The marriage had ended in 1990, having “grown cold” (at p4), and he believed that he was responsible for his wife’s having the affair in 1986. He added that he had never quite come to terms with the break-up of his marriage and the ensuing divorce.
53. The relationship with Karen had initially been harmonious, but in time her behaviour had led him physically to assault her, resulting in his arrest and conviction. He left her in 1997 because of the violence each had perpetrated on the other.
54. He said he accepted full responsibility for his offence but reiterated that it was committed out of anger at having been bitten. “Mr Cousens’s claim of taking full responsibility for his offending behaviour is challenged”, the report continued, “in that he has attempted to minimise the offence when he claimed that he was ‘drunk’ at the time he attacked his elderly (she was 79 years old) victim” (at p6).
55. The report found another inconsistency: “To the question about regretting the offence, Mr Cousens stated, ‘yes, because I had been brought up with the attitude that you must never hit a woman’. This too is challenged in view of his violent assault history against women which includes his former wife” (at p6).
56. The applicant’s case management file revealed good work reports from his overseer in prison and showed no internal offences since his incarceration. His score on the Static-99 test, however, placed him in the medium to high risk category. Taking dynamic factors into account produced the same result. Participation in an appropriate custodial sex offender treatment program might, however, give him a better understanding of the factors that contributed to the offences.
57. Mr Jacmon’s report of 7 May 2007 noted that the applicant had resisted undertaking a sexual offender course because he maintained that (i) he and the victim had participated in consensual sexual activity and that the assault occurred instinctively as a result of sharp pain, and (ii) he did not want to be in the same course as child sexual assault offenders.
58. Mr Jacmon administered the Personality Assessment Inventory (PAI), which showed no psycho-pathological disorders. There were, however, elevated scores in several areas. He suffered from recurrent episodes of anxiety, probably resulting from a disturbing traumatic event in the past that had left him changed or damaged in some fundamental way. His score level in relation to impulsive behaviours in areas that have high negative consequences was a feature commonly associated with borderline personality disorder. In his case impulsiveness concerned spending and, before incarceration, alcohol abuse.
59. On the aggression scale, his score showed an individual who is easily angered and has difficulty controlling the expression of anger, who is likely to be perceived by others as being hostile and readily provoked. Such people are prone to physical displays of anger such as damage to property and threats of violence. This related to the period before incarceration.
60. Mr Jacmon noted that the applicant acknowledged major difficulties in functioning and perceived an acute need for help in dealing with his problems. He also concurred with the recommendation in the Corrective Services report that people in his support group must also be fully acquainted with his offence and the tactics he used against his victim, and must not excuse or collude with him.
61. In summary, Mr Jacmon thought the applicant needed ongoing counselling to address the effects of his symptoms and any challenges he might find in his life in the community. That should be undertaken as part of his overall treatment in resettling into the community. He would need continuing assistance to maintain his defences against alcohol abuse and anger and should initially see a psychologist weekly.
62. At the hearing Mr Jacmon said he put the applicant’s risk of re-offending as low to moderate, assuming strong family support and assistance in maintaining a rehabilitation program for a considerable time. Without that, his risk would be higher than moderate. The important factor is that he is willing to undergo treatment.
63. Asked whether he was concerned that the applicant said the sexual activity with Heather was with her consent, Mr Jacmon did not reply but said his willingness to participate in a program meant that he was willing to learn. He acknowledged that he had not asked the applicant about the circumstances of his earlier assault charges. Later he added that the applicant had said he felt sorry, although he claimed that his reaction had been automatic. His remorse related to the assault, not to its sexual element.
64. Mr Jacmon agreed that the support group must be fully aware of the tactics he had used, because he must not be allowed to minimise the offence. There was a difference of opinion about the course of events, and he may have played alcohol consumption as a key factor, but so was his underlying capacity for aggression. Asked whether that meant he was in fact minimising the offence, Mr Jacmon replied that, by his denial, he was.
65. Mr Jacmon also acknowledged that the applicant’s pattern of convictions showed a process of escalation of criminality that was a cause for concern, but alcohol also played a part. Asked in re-examination whether he thought the applicant was on the way to recovery, Mr Jacmon replied that his progress so far needed to be followed by further treatment, but that he was on the way if he keeps it up.
Applicant’s submissions
66. In oral and written submissions, Mr Kerrigan contended that the applicant’s family has been very supportive from the beginning of this matter and since he was convicted in 2003. The applicant’s daughters provided oral evidence in these proceedings and his son wrote to the department during the period of the notice of intention to cancel the visa (G p80).
67. The support provided to the applicant by his daughters, and especially Jenny McLeish, was limitless. In evidence in chief, in cross-examination and in re-examination Mrs McLeish told the Tribunal that she would support her father no matter what crime he had committed.
68. The evidence of Mrs McLeish is that she would do what was necessary to help support her father and move on with life. In cross-examination she accepted that this would involve full knowledge of her father’s criminal behaviour.
69. The applicant has had a history of being usefully employed up until the time he was incarcerated in 2003.
70. The evidence also shows that the applicant has had a history of problems with alcohol and all of his convictions involve alcohol.
71. The applicant sees his time in prison as a wake-up call and that he needed to change his behaviour, and particularly that he needed to address his use of alcohol and to live a sober life (Exhibit A3, para 31)
72. Since entering the prison system the applicant had completed a relapse prevention program and is committed to living a life without alcohol in the future (G p81 and Exhibit A3)). The applicant’s evidence is that he will continue on with counselling after his release. He has shown understanding and insight into his problems, according to the evidence of Mr Jacmon, and he is addressing those problems.
73. The applicant had attempted to gain release on parole and had sought to live with his daughter in the Australian Capital Territory. The application for parole included ongoing counselling and treatment in the sex offenders’ program that both Mrs McLeish and the applicant mentioned in evidence. However the application for parole was rejected by the Attorney-General in New South Wales as the programs to be undertaken were to be in the Australian Capital Territory.
74. Significantly, the evidence of Mr Jacmon identifies that the applicant has indicated his willingness to participate both in alcohol and anger programs. In addition the applicant has indicated that he would undergo the sex offenders program upon release.
75. The applicant is supported in participating in the sex offenders program by his daughter and has provided a reason for why he did not wish to do the course inside the prison system. His reasoning for not doing the course is consistent with his new-found ability to think situations through and avoid high risk situations as confirmed by Mr Jacmon's evidence and stated in his own evidence (Exhibit A3).
76. The applicant has shown remorse for his criminal activity. He has shown remorse for his victim. This remorse is both in the evidence of the applicant, Mr Jacmon and in the sentencing judge’s remarks, which indicate that the applicant has shown remorse. While the applicant has consistently denied certain aspects of the events that resulted in him being convicted in 2003, it is significant to look at Goldring J’s sentencing remarks (G p83) where he says at page 1:
…
… He pleaded guilty in the local Court having answered his bail, but before the police were in fact in a position to proceed against him, and that is something that I will refer to later in the context of remorse. … (Mr Kerrigan’s emphasis.)
…
77. The applicant pleaded guilty before the charge against him was ready and without reference to the facts on which he would be convicted. His maintaining of a different set of facts is consistent.
78. The applicant has continued to maintain the alternative facts despite the potential harm it may cause him and he has presented the same consistent story to all psychologists. It should not be taken as a sign or indicator that the applicant is at high risk of re-offending.
79. The other incidents of assault in 1992 and 1997 were in an environment where the applicant had himself been assaulted on at least two occasions during the same period. In regard to the 1992 offence the applicant’s evidence was that he was responding to an assault on himself. The offence committed by the applicant was proved as he pleaded guilty, but it was dealt with pursuant to s 556A of the Crimes Act 1900 (NSW) (the Crimes Act), so while the offence was proved the charge was dismissed in accordance with the Magistrate’s discretion. As such that conviction should not be considered in this matter, pursuant to s 501(10)(a) of the Act.
80. The second conviction should be viewed in the light of a mutually violent relationship, which the evidence is the applicant sought to end.
81. The applicant and his family in evidence displayed a conviction to continuing rehabilitation. The applicant’s resolve to continue counselling and rehabilitation was either not challenged or the applicant would not be moved on his resolve to do so.
82. In addition, it is the evidence of Mr Jacmon that with family support the applicant has a strong incentive to attend such programs.
83. The report of Mr Wallis and the evidence of Mr Jacmon is that the applicant is at low risk of re-offending. The sentencing judge found that the applicant had high prospects of rehabilitation.
84. The Corrective Services report (Exhibit A4) finds that if the applicant remains untreated, he would be at medium to high risk of re-offending. The evidence is that he will not go untreated.
85. The evidence is that the applicant has benefited from his time in prison and that he has accepted that he previously had problems with alcohol and that he is now addressing those problems. The evidence is also that he has gained insight into his anger issues and is aware of how to manage such situations.
86. The exercise of discretion pursuant to s 501 of the Act is subject to Ministerial Direction No 21 (G pp38-52). The direction has at its base the protection of the Australian community, the expectations of the community and the best interest of any child (however the best interests of the child become a consideration generally after a child turns 18 years of age).
87. Guidance in the application of the discretion in the Act can be found in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; RePrasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780; Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.
88. However, while there are three "primary considerations" identified in paragraph 2.3 of Direction No 17 and 11 "other considerations" in paragraph 2.17. In addition, there are "other international obligations" identified in paragraphs 2.18-2.23. As a result of the decision of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 (Dowsett J, 4 May 2001) and Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 (Cooper J, 1 June 2001), the tribunal must come to its own conclusions as to the relative Importance of each of these considerations, and its discretion cannot be fettered by Direction No. 17.
89. It is not disputed that the crime for which the applicant has been convicted is serious.
90. In this case, however, the risk of the applicant re-offending is low, given the evidence of rehabilitation, a desire to undergo on going rehabilitation and family support. The applicant has undergone rehabilitation and is willing to undergo further rehabilitation and counselling and in his evidence accepts that such a process is life-long.
91. The independent evidence is that given the applicants resolve and strong family support that he is at low risk of re-offending (Jacmon).
92. The applicant’s past behaviour is characterised by his failure to address his problems with alcohol and aggression. He has been doing this and is willing to continue to do so.
93. In addition the evidence is that the applicant has a role to play in the lives of his grandchildren and given his past employment history that he would make a positive contribution to the community.
94. In the circumstances of this case it is unlikely that the cancellation of the applicant’s visa would act as a deterrent to any other person and this is specifically so as the applicant has not acted in criminal schemes and his previous offences were within a domestic setting.
95. The consideration of deterrence relied on by the respondent in its statement of facts and contentions (Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 (24 September 2004). refers directly to punishment being a deterrent. The process of determining character and exercising of discretion in relation to visa cancellation is not a punishment and should not be used as punishment.
96. In considering the community expectation it should be accepted that the community expects that the exercise will be done with a good deal of compassion.
97. The community expectation is also strong that when a person is sentenced, the court should take into account both the punishment and rehabilitation. In the circumstances of this case, with no overseas network, the effect of deportation would be to hinder the applicant’s rehabilitation which the community would expect the applicant to undergo (Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No. 81)
98. In this case the community and the government accept that at the core of society is the family unit. In this case the applicant has been in Australia for 46 years and the expectation of the community would be that he be allowed to stay, having grown up here and spent the bulk of his working life in Australia.
99. The applicant has his entire family in Australia. If the decision under review is affirmed it is unlikely that he would see either of his parents again. All of the applicant’s children and grandchildren are in Australia and it is unlikely that he would continue to have regular or any personal contact with them.
100. In Australia the applicant’s son-in-law has been able to assist in securing him work in the Australian Capital Territory upon his release (Exhibit A5, para 26). In summary if the decision to cancel the applicant’s visa were affirmed then it would cause his family significant disruption.
101. The evidence in this case of the applicant’s daughters is that any visa cancellation would cause significant disruption to the applicant’s family and cause problems for Australian citizens.
102. In addition the evidence is that the applicant has had no contact with the United Kingdom since 1960 and would return to no family or no family network and that he would be on his own with no real knowledge of the country having spent his entire adult life in Australia.
103. The applicant has shown a willingness to be rehabilitated and significantly he has shown good conduct while he has been in the prison system. The report of Corrective Services (Exhibit A4) details that he has been a well behaved and compliant inmate who has been no problem and who has achieved good work reports (pp6-7).
104. In addition the applicant was never advised at any time prior to the notice of intention to cancel his visa that his conduct or criminal activity may result in him being removed from Australia.
105. In conclusion, the applicant argued that the statistical basis of re-offending should play little part in determining an individual’s case, especially where the evidence strongly supports a willingness to be rehabilitated and a strong family support network (Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198).
106. The applicant in the circumstances is at low risk of re-offending. He has a strong family support network and a strong desire to be rehabilitated with an equally strong resolve to continue a life of sobriety.
107. The Australian community despite the seriousness of the applicant’s past crime, is at low risk in the future of him re-offending. The applicant’s strong resolve to be rehabilitated and his strong family support provide a solid safety valve for the entire community.
108. In this case it is also appropriate to take into account the age of the applicant and the fact that deportation maybe more severe punishment than the term of imprisonment, which should not be the intention of the deportation process.
109. The applicant’s family and personal circumstances (including 46 years of residence in Australia) along with the other additional factors in paragraph 2.17 of the Ministerial direction weigh in favour of the applicant being permitted to remain in Australia.
110. If the applicant did re-offend, a member of the community would suffer. However, this needs to be weighed against the low risk of the applicant re-offending and the very serious consequences of his re-offending. He was not previously given any warning about the consequences of his offending behaviour and is now aware of the said consequences. In the circumstances of the applicant, where he has good continuing prospects of rehabilitation, the community is appropriately protected and the decision of 22 March 2007 should be set aside, Mr Kerrigan argued.
Application of the Law and Findings of Fact
111. As was stated above, the first issue for me to decide is normally whether, pursuant to s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to his past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
…
112. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a simple adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).
113. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. As it is conceded that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
114. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
115. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
116. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).
117. I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. 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.
…
118. 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.
…
119. Examples of what the Government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
120. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, ”whether visa refusal or cancellation may prevent or discourage similar conduct”.
Protection of the Australian Community
121. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21 (not Direction No 17, as the applicant proposed), which was made pursuant to s 499 of the Act. That Direction, which is binding on this tribunal, states in para 2.6(d) that sexual assaults are to be treated as particularly repugnant to Australian community, and in para 2.6(f) that assault or any other form of violence against persons is to be treated as very serious. The applicant concedes that the principal offence of which he has been convicted is serious, but his denial of several of the central aspects of that offence makes it necessary to set out the sentencing judge’s findings in relation to it:
…
On 11 April this year the prisoner shared a taxi cab home from the Catalina Golf Club at Batemans Bay with the victim. The victim says that she does not recall asking him to share the cab but there had been previous contact between them, although not of a sexual kind, and it does appear that they had had some social association. They have both been members of the golf club. The taxi dropped the two at the victim's home and the prisoner walked the victim to her door. She had always found him to be polite and this, she thought, was not out of character. They went inside but apparently, the prisoner said he was too tired to go home and he wanted to have a sleep. The victim offered him the spare bedroom and she went to bed.
It is quite clear that both the prisoner and the victim had been drinking at the golf club and they were affected by alcohol to some extent. However, after the victim had gone to bed, the defendant entered the victim’s room, apparently naked, and he said to her words which were insulting, calling her a bitch and a slut and the prisoner then pulled the victim’s pants off, got on top of her and forced her legs apart. She resisted and the struggle continued for some one and a half hours according to the victim. The prisoner was unable to have an erection but the victim at one stage decided that it would be best for her if she were not to consent to sexual intercourse but not to resist.
I should say that there are in evidence photographs of the victim, which confirms that she is an elderly woman. Her statement says she was seventy-nine years old at the time, although it is hard to accept that given her appearance in the photographs. Nevertheless in those photographs she does show significant injuries including a very spectacular black eye and abrasions on her arm. These are the result of attacks on her by the prisoner and they constitute the injuries referred to in the charge.
After about an hour and a half the victim managed to persuade the prisoner that she needed to go to the toilet and she went to the bathroom taking with her a cordless phone. She was able to telephone the police. When the police arrived shortly afterwards the prisoner was asleep in the victim's bed and he was naked. He was then revived with some difficulty and he was arrested. As I have said after that he has never denied his guilt. He has been co-operative and he pleaded guilty at what is almost before the first available opportunity.
This is an extremely serious offence. The prosecutor has referred me to the decision of Sanderson (2000) NSW CCA 512. There the Court refers to a number of authorities which emphasis how devastating it must be for a person to be attacked in his or her own home. When the victim is a seventy-nine year old lady who is attacked by someone with whom she has a social relationship for some years the effect must be, if anything, worse. However, the Court of Criminal Appeal in that case had to deal with a case where the offender was young and who had clearly planned the attack on the victim with great care. In this case I am satisfied that there was no element of premeditation or malice. The Appeal Courts have emphasised on many occasions that drugs and alcohol can explain why people act in a criminal way and they have emphasised that Courts need to take that into account but equally they emphasis that the use of drugs and alcohol and the influence of drugs and alcohol is never an excuse.
The victim herself has been severely affected. Not only did she suffer the injuries that are shown in the photographs but she says that since this incident her whole life has been significantly altered. She was, before this incident, an active golfer and an active ballroom dancer and, indeed, she had achieved some prominence in both those areas when she was younger, but she cannot do either of those things any more and one of her children has had to move interstate to become a virtual full-time carer for her. Those consequences do affect the seriousness of this offence.
…
122. The applicant’s version of the events has been set out above. The applicant also pleaded guilty over a period of several years to a number of other assaults, one of which resulted in his being conditionally discharged without conviction pursuant to s 556A of the Crimes Act. That offence, Mr Kerrigan submitted, could not be taken into account by reason of the effect of s 501(10)(a), which reads as follows:
…
(10)For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a)the conviction concerned has been quashed or otherwise nullified;
…
123. But that provision in terms applies only to “a sentence imposed”, whereas conditional discharges do not result in the imposition of a sentence, or indeed of conviction. There is therefore no conviction to be quashed or otherwise nullified. The tribunal may thus take account of the 1977 and 1983 drink driving charges, the 1992 assault on Karen and the 1997 charges relating to the assault on Karen, the assault occasioning actually bodily harm on her daughter and the malicious damage to the wall of her house, in addition to the 2003 conviction.
124. A further preliminary question is what weight, if any, should be given to that part of the applicant’s evidence that comprises his version of the events leading to the 2003 conviction. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Court of the Federal Court held that it was impermissible in a deportation case for the tribunal to impugn the conviction on which the deportation order was based. That prohibition also applies to the central facts of the case:
…
Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence (at [40]).
…
125. In reaching their conclusion, their Honours relied on Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.
126. Even in a case in which the conviction is not the foundation on which the power to deport (or presumably to cancel a visa) is based, the tribunal is not entitled to reach or express a view that the person was wrongly convicted, although it may accept evidence that contradicts the facts essential to the conviction (Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [44]).
127. The tribunal may, however, examine the circumstances surrounding the commission of the offence or matters relating to the trial itself for the purpose of enabling the tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct, but not for the purpose of assessing the propriety of the conviction or the fairness of the trial (Daniele (supra) at 358).
128. In this case, the respondent relies on s 501(6)(a) and (7), which depend relevantly on the person having been sentenced to a term of imprisonment of 12 months or more. The respondent also relies, however, on s 501(6)(c)(i) and (ii), which involve a broader inquiry and do no depend on a particular sentence of imprisonment.
129. Consequently, the appropriate criterion to apply here is that evidence contradicting the facts essential to the conviction and sentence may be admitted. As Branson J noted in Ali (supra), however, there is a heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (at [44]).
130. The applicant has not discharged that heavy onus, for several reasons. First, he has given different versions to different people. While, as Mr Kerrigan pointed out, he has adhered to the story outlined above in his discussions with psychologists, he told his daughters, and convinced them, that he could remember little or nothing about the sexual assault. One might understand a certain reticence about putting his daughters fully in the picture in that regard, but there were other ways in which he could have spared them the unsavoury details without giving them an explanation totally at odds with the one he gave the psychologists and the tribunal.
131. Secondly, the victim’s story is inherently more probable. Assuming (and this is a large assumption, even allowing for the effects of alcohol) that a 79-year old woman would invite to her home for the purposes of an assignation a much younger man she had known for several years on a purely social basis, it is nevertheless unlikely that she would call the police and pursue charges entailing a public airing, in a small town, of embarrassing matters if all that had happened was that the applicant had lashed out reflexively as the result of a sudden pain.
132. Thirdly, the applicant pleaded guilty to the charge, although he told the tribunal that he thought he was only pleading guilty to an assault resulting from the involuntary blow he delivered. While that could have been true in relation to his first appearance in court, he adhered to that plea at the district court sentence hearing at which he was represented by a law firm of long standing. The solicitor with carriage of the matter had obtained a psychologist’s report from Mr Wallis, who was given the police fact sheet and asked the applicant about it. The only reasonable conclusion is that he was fully aware of the charge and of the facts alleged.
133. As Goldring J observed, the effects that the applicant’s offence had on Heather aggravate its seriousness. Not only was she significantly injured, but she said that after the incident her life was significantly altered. Previously, she had been an active golfer and ballroom dancer who had achieved some prominence in those fields when younger. Afterwards, however, she could not do either of those things any more and one of her children had to move interstate to become a virtual full-time carer for her.
134. The applicant told the Corrective Services psychologists in May 2006 (Exhibit A4, p6) that Stacey had seen Heather dancing at the local golf club two weeks after the offence. At the hearing Stacey said she had seen Heather often at the golf club but had not spoken to her. She was dancing and talking to people and “was out when she wasn’t supposed to be”. The witness did not say how long after the incident she had first seen Heather at the club.
135. If one accepts that evidence, as I do, it does qualify Goldring J’s findings on that point, but not necessarily to a major extent. It shows that Heather was not bedridden or housebound and that she was able to engage in one of her favourite pursuits. But even disabled people are encouraged to go out and socialise in that way, and can be seen every day and every evening at any RSL club or similar meeting place. Nor does it mean that she does not require the assistance of one of her children as a full-time carer. The fact that Heather was awarded $27,000 in restitution for the offence also suggests that she suffered substantially as a result of the assault.
136. The applicant maintains that his earlier assault convictions arose out of retaliation against violent assaults by Karen. There could well be some truth in that, as it appears that Karen was twice dealt with by the courts on charges of assaulting the applicant himself. Mr Jacmon thought the claim plausible, as men and women are now equally violent towards each other, largely owing to the effect of drugs. Recent social science research is said to support the view that domestic violence is now perpetrated by both sexes in roughly equal proportions.
137. But the applicant’s claim that he inflicted actual bodily harm on Karen’s daughter in the course of what amounted to self-defence is revealing in its callousness and in what it says about the applicant’s ability to deny or rationalise his wrongdoing. A grown man should be able to get a knife away from an eight-year old girl without physically injuring her. Smashing his fist into the wall, and presumably damaging it in the course of that exchange – which resulted in his being convicted of malicious damage – also speaks of wanton violence.
138. I therefore conclude that the applicant’s criminal conduct is very serious.
139. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
140. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operated to deter similar conduct in much the same way as the threat of punishment does.
141. In this case, deterrence considerations weigh against exercising the discretion in favour of not cancelling the applicant’s visas, although they are perhaps not a major factor.
Rehabilitation and recidivism risk
142. Mr Leerdam argued that this case was really about the issue of recidivism, and Mr Kerrigan did not disagree with that proposition. Indeed, both parties did present their cases in a manner focussing primarily on recidivism risk and rehabilitation.
143. As was noted above, the applicant had a good employment record before his imprisonment and was a good prisoner, earning favourable reports from his work supervisors. He has been free of alcohol while in jail and has completed anger management and alcohol relapse prevention courses, although Mr Jacmon stressed that they will need to be reinforced if he is released into the community.
144. As against that, he has several convictions for offences of violence, and Mr Jacmon conceded that they displayed a pattern of escalating violence. 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 that past behaviour. In cases where there is a gap or gaps between convictions, the Direction continues, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed (para 2.10(b)). There have in fact been gaps of several years between the applicant’s convictions.
145. The Department of Corrective Services psychological report (Exhibit A4) describes the applicant as an untreated and violent sex offender who should be categorised as at medium to high risk of sexually recidivating, but if he were to participate in an appropriate custodial sex offender treatment program, he might gain a better understanding of the factors that contributed to the offences (at p8).
146. In his written report (Exhibit A7) Mr Jacmon did not attempt to estimate a level of risk but instead set out a number of considerations that he considered likely to reduce the risk (at p10). At the hearing, however, he said that he agreed sith Mr Wallis’s estimate, using the Static-99 scale, of a moderate to low risk (Exhibit R2, p4).
147. Both the Corrective Services and Wallis reports stressed the need for the applicant to undertake a custodial sex offender’s course. While he is willing to undertake a community-based sex offender’s program in the Australian Capital Territory and has arranged for his daughter Jenny to make enquiries about how he would enrol in it, he has always refused to undertake such a course while in custody. For that he offers two reasons. One is that he would be placed in continual contact with child molesters, and thought it inadvisable to place himself in that situation from an anger management point of view. That, in my view, is an understandable and acceptable reason.
148. But his other reason, as he conceded at the hearing, is that he does not see himself as a sex offender, even though he is classified as one, insisting that his sexual contact with Heather was consensual. Mr Jacmon confirmed that the applicant held no remorse about the sexual side of his principal offence and that his denial in that respect amounted to an attempt to minimise the offence and could be a contributing factor towards recidivism.
149. The Corrective Services report noted more than one example of the applicant seeking to minimise his offence (at p6) and Mr Jacmon in cross-examination agreed with that.
150. This attitude of the applicant, which Mr Kerrigan very properly conceded had the potential to damage his case, presents something of a conundrum. By it Mr Cousens is not merely minimising the offence, he is virtually denying it, as he claims that his only violent act towards Heather was a kind of reflex action independent of his will, or something analogous to automatism.
151. If that is what he subjectively believes, arguably he should be able to say so without automatically being prejudiced for having told the truth. On the other hand, it raises concerns as to whether he has really faced the nature and consequences of his acts, which would have a bearing on the risk of recidivism. That is especially so given the admitted escalation in the violence of his offending conduct. Mr Jacmon did not seek details of his earlier offences of violence, explaining that he did not have sufficient time to do so. But the applicant’s failure to accept responsibility even for injuring Karen’s child gives an added, and adverse, significance to his attitude.
152. Mr Leerdam submitted that the two psychological tests conducted over three years displayed a compelling consistency in identifying strong recidivism risks. The Department of Corrective Services report noted that in the Static-99 normative sample, 26 percent of those receiving a score similar to the applicant’s had been charged with a new sexual offence within a five-year period, and 31 percent in a ten-year period, while 36 percent had been charged with a new violent offence within a five-year period, and 44 percent within 10 years (see also Exhibit R3). Those percentages were at least twice as high as those considered significant in Re Langat and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 93 at para 54. In relation to a particular offender, such statistics describe hypothetical possibilities, but it is nevertheless permissible to take them into account (see Batey (supra) at 208).
153. Further, in this case, the static factors were matched by dynamic risk factors, including the applicant’s tendency to minimise the offence by alluding to his drunkenness, his claim that the victim consented, his callous disregard for the victim, his history of violence towards former partners, including his ex-wife, his history of alcohol abuse implicated in his offending behaviour and a lack of demonstrated commitment to address his offending behaviour (Exhibit A4, p8).
154. Mr Leerdam referred to Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942 at para 43, as a similar case of an offender lacking in emotional self-regulation who allows himself to believe that the victim was consenting to the sexual behaviour or was not harmed by it. Mr Jacmon acknowledged that unless a perpetrator realises that he is blaming the victim, he will not recover.
155. The PAI tests administered by Mr Jacmon had shown impulsiveness in areas with high negative consequences, ready anger and difficulty controlling the expression of anger, and proneness to physical displays of anger.
156. Mr Jacmon made it clear that if the applicant went untreated he would have a higher than moderate risk of re-offending, but believed that the program outlined earlier would bring the risk down to the low to moderate range. Strong family support was essential in order to keep him motivated to follow an assistance program that had to be maintained for a considerable time.
157. At the same time, he agreed with the Corrective Services report recommendation that:
…
People in his support group, apart from being willing to support and supervise him in maintaining an offence-free lifestyle, must also be fully acquainted with his offence and the tactics he used against his victim, and must not excuse or collude with him (Exhibit A4, p9).
…
158. A notable feature of the evidence was that both of the applicant’s daughters said they were, and preferred to remain, totally unaware of the circumstances of the assault. Jenny McLeish said it was up to her father to tell her, but it was not important for her to know, though it might help everyone to “move forward”. She knew only that the main assault was alcohol-related and that he pleaded guilty to it. Her husband had attended the sentencing hearing but had not told her what was in Heather’s statement, and she was not really interested in it. All she knew was from her father, and all he said was that he did not recall a lot about it.
159. Stacey Cousens’s evidence was to a similar effect. Her father had told her that the main charge involved an assault but could not give any other information because he could not remember. With her comment that “he did four and a half years in jail because of her [Heather]”, Stacey appeared to be blaming the victim even more than the applicant did.
160. While the daughters’ unconditional loyalty to their father is positive and commendable on one level, it is problematical in the context of the Corrective Services recommendation, with which Mr Jacmon agreed.
161. There is no doubt about Mrs Jenny McLeish’s commitment to supporting her father’s rehabilitation program. Although there is no evidence from Mr McLeish, he has apparently accepted the proposed arrangement and has arranged for work to be available in the construction industry for the applicant. It may be questioned, however, whether a young family is quite the ideal setting for such an undertaking. The daily demands and dramas attending young children can generate stresses in any household. If the applicant were, for example, to lose his temper with one of the children, his welcome in the home might be compromised. Mr McLeish, as an officer of the AFP Protective Service, is employed in an aspect of law enforcement and may not necessarily have an exceptionally elevated tolerance for law-breakers, especially under his own roof.
162. Thus the Corrective Service psychological report estimates the applicant’s risk of recidivism as medium to high, with the qualification that if he participated in an appropriate custodial sex offender treatment program and a relapse prevention program, and was subject to effective supervision, his risk of sexually re-offending could possibly be lower.
163. Mr Jacmon essentially agreed. He put the risk at low to medium, but conditionally upon completing a sex offender’s program, alcohol abuse and anger management programs, and seeing a psychologist initially weekly. The program would need to continue for some considerable time. If those conditions were not fulfilled, Mr Jacmon estimated the recidivism risk at higher than moderate.
164. The applicant has expressed his willingness to participate in such a program when not in custody. Yet he is still categorically denying any responsibility for the sexual offence and virtually denies responsibility for the physical assault as well. That is consistent with his apparent denial of responsibility for the injury to Karen’s daughter.
165. The favourable tenor of Mr Jacmon’s prognosis was that the applicant should be willing to learn, and the fact that he was prepared to undertake the program showed that he was so willing. Yet any willingness to learn does not extend even now to a preparedness to recognise the fact that he committed a sexual offence. That has been the case since the outset and there is not the slightest evidence of any change in that respect. It was presumably for that reason that Mr Leerdam argued that a sex offender’s course would serve no useful purpose.
166. The applicant has made progress in anger management and in removing alcohol as a contributing factor to his pattern of offending. But in light of the above, one must conclude that while he has taken positive steps towards rehabilitation, he is not yet rehabilitated and it is not possible to predict with confidence that a treatment program such as the one proposed would be successful.
Expectations of the Australian Community
167. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
168. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
169. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).
170. In this case, I have no doubt that the community would view the applicant’s violent sex offence against a 79-year old woman as abhorrent and as justifying visa cancellation in itself. That view would be reinforced by the escalating pattern of violence displayed by his record and by the incomplete and uncertain nature of his rehabilitation, in particular his refusal to accept responsibility for the crime and his persistence in an entirely implausible version of the events. Most people would feel compassion for his family members in Australia but not, I think, to the extent of turning against visa cancellation.
The Best Interests of the Child
171. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
172. As the applicant’s children are mature adults, this consideration does not apply to them. He has, however, two granddaughters, one aged 12 months and the other aged about four years. In her fax to the department of December 2006 (G p79), Mrs Jenny McLeish explained that “my daughters barely know their grandfather” and in her statement of 9 May 2007 (Exhibit A5) she expresses the hope that her father will be able to attend the younger daughter’s first birthday, “as this would be the perfect opportunity for him to be involved in the first of her life’s milestones, something he has missed out on with our oldest daughter”.
173. As para 2.3(c) makes clear that the best interests of the child or children are to be regarded as a consideration only in cases of “a parental or other close relationship”, it could be argued that this consideration is not engaged at all, as such a relationship scarcely exists at this stage.
174. Further, para 2.16(b) directs decision-makers to have regard in this context to the duration of the relationship, including the number and length of any separations and to treat the hypothetical prospect for developing a stronger relationship in the future as a matter of relatively less weight than the proven history of a relationship based on past conduct.
175. The guiding principle in relation to the child is that its best interests will be served if it remains with its parents (para 2.15). Both children are currently living with their parents and the decision under review does not affect that.
176. If the decision under review is affirmed, Mrs McLeish’s children are likely to have little opportunity for developing a close relationship with their maternal grandfather for quite some years, until they are able to travel overseas. There is no evidence as to whether the girls still have their paternal grandparents and, if they do, how often they see them. Many children do not have, or do not well know, all of their grandparents and although that is unfortunate, it is not normally regarded as significantly impairing a child’s upbringing or welfare. Further, any relationship the granddaughters might develop with the applicant could, of course, be interrupted again if he were to re-offend. Thus in the present case the best interests of the grandchildren do not significantly weigh against visa cancellation, assuming that they should be considered at all, given the wording of the Direction.
Other considerations
177. 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 that 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; and any evidence of rehabilitation and any recent good conduct.
178. The applicant has been in Australia since the age of 10. His parents, brother and sister, as well as his children and grandchildren, live in Australia. No explanation was offered as to why the applicant did not seek Australian citizenship when he could have, but given that his mother, father and sister all took out citizenship, there may have been an element of conscious choice in his failing to follow suit.
179. The applicant is not married or in a de facto relationship. No member of his family is dependent on him, but they would suffer some emotional hardship if he were removed to the United Kingdom. Those most affected might perhaps be his daughters who, although they were estranged from him for some years in early adulthood, have formed stronger bonds with him in more recent times. There is no evidence from the applicant’s brother, sister or parents.
180. Family members, perhaps Stacey especially, could travel to the United Kingdom to visit the applicant if he were living there, although that might not be easy for his parents because of their age, and for Jenny it would not be practicable for financial reasons for some years. On the other hand, modern communications such as email, webcam and the internet can be and are used to alleviate the strains of separations. The well-known Skype software, which can be downloaded from the internet free of charge, operates as a video phone in real time and at negligible cost.
181. The applicant’s rehabilitation, as was outlined above, is incomplete and contingent. He has no business interests in Australia. He would face some hardship in becoming established in the United Kingdom, but he has useful skills. He is also of presentable and healthy appearance and he should have no undue difficulty in finding employment. As a United Kingdom citizen he would have access to welfare benefits at least comparable with those in Australia and support services (including Alcoholics Anonymous). He has some relatives in England, but there is no evidence about who or where they are. He says he has had no contact with them since coming to Australia, but if he were able to renew those contacts it is possible that he might find them a source of guidance or introductions.
182. The other considerations in this case weigh against visa cancellation, if only because of the number of immediate family members the applicant has in Australia. Nevertheless, the primary considerations of community protection and expectations outweigh the other considerations and the interests of the children in this case.
183. The decision under review is affirmed.
I certify that the 183 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ................[sgd]............................................................
Renee Wallace, AssociateDate/s of Hearing: 28 and 30 May 2007
Date of Decision: 13 June 2007
Counsel for the Applicant: Mr Shaun Kerrigan, Cullwalla ChambersSolicitor for the Respondent: Mr Lenny Leerdam, DLA Phillips Fox, Lawyers
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