Re Haman and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1113
•29 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1113
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2001/145,154,172,173,174
GENERAL ADMINISTRATIVE DIVISION )
Re JANTO HAMAN ANGELA SURYANI LINDA MELISSA HAMAN AGUNG PRIBADI HAMAN OSCAR HAMAN
Applicants
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Date29 October 2002
PlacePerth
Decision The Tribunal sets aside the decisions under review and remits the matters to the respondent for reconsideration in accordance with the direction that the Business Skills (Migrant) (Class AD) (Subclass 127) visas granted to Janto Haman, Angela Suryani Linda, Melissa Haman, Agung Pribadi Haman and Oscar Haman should not be cancelled under s 134 of the Migration Act 1958.
…........(sgd S D Hotop)......................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Business Skills (Migrant) visa – visa holder established eligible business in Australia – visa holder convicted of fraud and stealing offences and sentenced to 7 years' imprisonment – respondent decided to cancel visa – material that Tribunal may take into account in reviewing respondent's decision – whether visa holder utilising skills in actively participating at senior level in day-to-day management of business - whether visa holder has made genuine effort to utilise skills in actively participating at senior level in day-to-day management of business – whether visa should be cancelled in exercise of discretion – relevant considerations including seriousness of visa holder's conduct and likelihood that conduct may be repeated, and best interests of visa holder's children
Migration Act 1958 ss 134, 135
Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Re Tang and Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103
Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54
REASONS FOR DECISION
29 October 2002 Associate Professor S D Hotop, Deputy President
Janto Haman, his spouse, namely, Angela Suryani Linda, and their children, namely, Melissa Haman, Agung Pribadi Haman and Oscar Haman ("the applicants") have applied to the Tribunal for review of decisions, dated 19 April 2001, of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") to cancel their Business Skills (Migrant) (Class AD) (Subclass 127) visas pursuant to s 134 of the Migration Act 1958 ("the Act").
At the hearing on 20 February and 8 May 2002 the applicants were represented by Ms L Horwood, Solicitor (on 20 February 2002) and by Mr P Kelly, Solicitor (on 8 May 2002), and the respondent was represented by Ms R Vavakis, a Lawyer employed by the Australian Government Solicitor. The Tribunal had before it the documents ("T documents", T1-T26) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicants (A1-A12) and by the respondent (R1-R5). Oral evidence was given by Mr J Haman, Dr J Yates, Mr R Wulff, Mr G Burns, Dr B Loke and Ms H Fowler.
The Factual BackgroundThe relevant background facts as found by the Tribunal on the basis of the T documents and the exhibits, and about which it understands there is no dispute between the parties, are as follows.
Janto Haman ("Mr Haman"), who was born on 30 December 1957 in Indonesia and who is an Indonesian citizen, first arrived in Australia on 27 May 1998, having been granted a Business Skills (Migrant) (Class AD) (Subclass 127) visa on 25 March 1998.
Angela Suryani Linda, the spouse of Mr Haman, together with their children, Melissa Haman, Agung Pribadi Haman and Oscar Haman, first arrived in Australia on 21 June 1998, having previously been granted Business Skills (Migrant) (Class AD) (Subclass 127) visas by reason of their being members of Mr Haman's family unit.
On 13 November 1998 Mr Haman established a business trading under the name "Bestlink", and the business name "Bestlink" was registered under the Business Names Act 1962 (WA) on that date. Mr Haman was the sole proprietor of, and the only person employed in, that business.
On 14 March 2000 Mr Haman was sentenced to imprisonment for a total period of 7 years following his plea of guilty and his conviction in respect of 82 offences of fraud and 5 offences of stealing as a servant committed by him during the period from May to October 1999. His sentence was deemed to have commenced on 6 December 1999 (when he was taken into custody) and he was declared eligible for parole.
By letter dated 6 April 2000 an officer of the (former) Department of Immigration and Multicultural Affairs ("the Department") forwarded to Mr Haman at his former address a "Survey of business migrants" form (no 1010) for completion and return by 23 June 2000.
Mr Haman subsequently completed that form, dated 8 May 2000, and returned it to the Department. In that form he described the business, "Bestlink", as follows:
"Bestlink is a service company which provides consultancy/advisory/services to investors specially foreign investors about how to do and invest in Australia. Bestlink is actively in promoting the investment opportunity in Australia and making business linkage between overseas investors and Australian companies and indirectly creating capital inflows coming to Australia. Bestlink has helped several investors in property development business in Western of Australia, which resulted investments around A$3,000,000.00 in 1998/1999." (sic)
In response to a question in the form Mr Haman indicated (inconsistently), by ticking the relevant boxes on the form, that he was "currently engaged in a business in Australia" and that he was "not currently engaged in a business in Australia but [HAD] BEEN engaged in a business". In response to the question, "Do you intend to continue in business during the next 12 months?", he ticked both "not sure" and "yes", and provided the following explanation:
"Due to gambling in International Room at Burswood Casino, WA. I lost all my money and then I committed fraud in attempt to win back the money, I had the obsession to win them back but unfortunately my problem became deeper and deepest, instead of winning back, I lost more and more everyday until I could not pay back the money which I took from my friends bank accounts.
Due to heavy guilty feeling to my friends and family, I went to police stations to confess my fraud acts and on 6 December 1999, I asked the judge to put in the custody and then sentenced on 14/03/00, and I will be released from prison on 5 August 2002.
I am now in appealing for my sentence for earlier release from prison. If I will be released earlier certainly I will continue my business!!" (sic) (original emphasis)
In response to the question, "Is it likely that you will become involved in business within the next 12 months?", he also ticked both "not sure" and "yes", and provided the following explanation:
"Yes, if I am released earlier and I will continue my business and not sure because following reasons:
See answer in question no: 56 and my following comments:
My fraud crime was unintentional crime due to gambling problem in casino, which happened accidentally. Previously I lived in Indonesia, where do not have casino. When I arrived in Perth, I was in distressed conditions after experienced a brutal anti Chinese and my business was totally brought down; robbed and burnt and my life including my family were threatened. Everything just gone in few months.
Naturally, a Chinese ethnic likes me, when was introduced by friends to casino, became obsessed for winnings specially, I live in Perth and I could access the casino for 24 hours. This situation tempted me and I falled down to temptations. When I lost my money, I was panic to recover it back and I was out of control for the periods, I did foolish and shameful things which I should not do. I was trustworthy and respectful person in the past but when the evil controlled me, I broke the trust from my friends.
And my innocent wife and children have to suffer for my sinful acts
I have learned this big lesson at my 42 years old age for this stupid mistake and I will not repeat it again. I have asked the forgiveness from the God. I am now active in prayer group within the prison, I am studying Bible every day and I will be enrolled in Bible College, I am active in Prison Fellowship, I am now helping other inmates to know and accept God. After my release, I will use most of my time to help people and I would like to become an evengelist besides maintaining my permanent residency and then become Australian citizen. (Good citizen) I know, this will be hard for you in allowing me to live in Australia due to immigration law because of my crime but I trust fully God in His love and I will obey Him. I hope you give me second chance…". (sic) (original emphasis)
By letter dated 22 February 2001 addressed to Mr Haman at Casuarina Prison, an officer of the Department gave notice to Mr Haman of intention to cancel his Business Skills visa under s 134 of the Act and invited him to make representations and provide relevant information in opposition to the proposed cancellation of his visa by 29 March 2001. A notice of intention to cancel the Business Skills visas of Angela Suryani Linda, Melissa Haman, Agung Pribadi Haman and Oscar Haman, dated 22 February 2001, was sent to Ms Linda. That notice also invited Ms Linda to make representations and provide relevant information in opposition to the proposed cancellation of those visas by 29 March 2001.
By letter dated 28 February 2001 representations were made by Mr Haman and Ms Linda to the Department in response to the Department's letters dated 22 February 2001 (Exhibit A1, pp38-40, and Exhibit R1).
On 19 April 2001 a delegate of the respondent made a decision to cancel Mr Haman's Business Skills (Migrant)(Class AD)(Subclass 127) visa under s 134 of the Act, and Mr Haman was notified of that decision by letter dated 19 April 2001. On the same date the delegate made a decision to cancel the Business Skills (Migrant)(Class AD)(Subclass 127) visas of Angela Suryani Linda, Melissa Haman, Agung Pribadi Haman and Oscar Haman under s 134 of the Act, and Ms Linda was notified of that decision by letter of the same date. In each of those letters dated 19 April 2001, and in the Department's decision record, it was (erroneously) stated that Mr Haman and Ms Linda did not respond to the Department's notice of intention to cancel their visas, dated 22 February 2001.
On 30 April 2001 Mr Haman lodged with the Tribunal an application for review of the delegate's decision of 19 April 2001 to cancel his Business Skills visa. On 3 May 2001 Ms Linda lodged with the Tribunal an application for review of the delegate's decision on 19 April 2001 to cancel her Business Skills visa. On 8 May 2001 applications were lodged with the Tribunal, on behalf of Melissa Haman, Agung Pribadi Haman and Oscar Haman, for review of the delegate's decision of 19 April 2001 to cancel their Business Skills visas.
The Evidence of Janto HamanMr Haman told the Tribunal that he has a Bachelor degree in Economics and is a certified accountant in Indonesia, and that he is presently studying for a Bachelor degree in Ministry in Australia.
Mr Haman said that, at the time when he applied to enter Australia in March 1998, he owned a successful clothing retail business comprising 18 stores in Indonesia but he had also wanted to establish a business in Australia. He added that his "business dream" was to use Australia as the base for his business, to build up his "brand image" here, and then to franchise his business in various countries in Asia.
Mr Haman told the Tribunal, that after he had been granted a Business Skills visa to enter Australia in March 1998, his business in Indonesia was badly damaged by anti-Chinese rioting that occurred in Jakarta, especially on 13 and 14 May 1998. He said that his 3 biggest retail stores in Jakarta were set on fire and destroyed by the rioters and he thereby suffered economic loss of approximately $1,000,000.00. He added that his shops were not insured because he had been unable to obtain insurance cover.
Mr Haman said that, even though when he arrived in Australia he had already lost his assets in Indonesia, he knew that he had the necessary skills to start a business in Australia. He confirmed that, after his arrival in Australia, he established the business, "Bestlink", which involved providing advice to clients regarding property investments.
Mr Haman was next questioned about the circumstances which resulted in his being convicted of various fraud and stealing offences and sentenced to 7 years' imprisonment in March 2000 (see paragraph 7 above). He said that he had been in a very depressed state at the time and had begun to gamble at the Burswood Casino. He said that the offences involved his fraudulently obtaining money, which belonged to certain of his business clients, for the purpose of gambling at the Casino.
The Tribunal notes that a fuller statement of the circumstances leading up to the commission of the abovementioned offences by Mr Haman appears in Exhibit A1 (pp5-6). In his oral evidence Mr Haman confirmed that he had prepared that statement and that its contents were true and correct. The contents of that statement are as follows:
"Short History, How did I come to Australia
In early 1997, my business in Indonesia was very good. Indonesian economy was very strong. At that time, I applied for my Australian permanent residency through Business skill immigration (Visa class,127). I was granted the permanent resident status on 25th March 1998, which was one and half month before Indonesia falled into unrest due to brutal riot in Jakarta on May 13 abd 14, 1998 (anti Chinese community) and my business collapsed (my retail shops were totally burnt by the riot) including my investment in shares market finished. Most of the shares market value dropped to 10% and some of them left only 5% or zero….
Background of Indonesia unrest
In July 1997, Thailand was in financial crisis and gradually spread to Indonesia. Approached to December, Indonesian rupiah devaluated to 3 times due to politic crisis during the election and also concerned on the health of President. My retail chain stores (clothing) started suffering due to devaluation of rupiah. My shop rent expenses are in US dollar. Operating expenses increased but revenue went down due to several unrest. My investment in shares market also suffered loss. All business in Indonesia were trapped in a same problem and a lot of banks were liquidated.
Gradually, the rupiah devaluated to 6 times due foreign investors pulled out their money from Indonesia and the peak was in May 13 and 14, 1998. It was unrest in Jakarta and other big cities. The brutal riot happened, the mob attacked the Chinese business centre and shopping centres. They looted and burnt the shops specially owned by Chinese. I live in the area of Chinese community (I am Chinese and Indonesian citizenship) and my shops were in shopping centres.My arrival in Australia
With some money left, I came with my family in Australia in June 1998. We were distressed. At that time, I still had a house in Marangaroo, North of Perth. I bought the house through Indonesian agent when I were in Indonesia. I paid for the land and houses etc for almost $200,000. Without a friend and family in Perth, I found it difficult to start business in Australia specially we need big capital. It is different with my home country that if you have good connection, you can start your business with small capital. To be able setting up business in Australia, we need big capital. I decided to sell my house but unfortunately it was only worth for $135,000 because it had been marked up excessively. Not much money left after deducting the loan and accrued interest payable, selling commissions/advertising cost. (only around $14,000 left).
I tried to apply job for more than 50 times but all failed without interview although I am the bachelor degree in economics and accountancy and had a lot of job experience.
In frustration, I tried my luck in Casino and I was trapped in winning obsessions although losing money all the time. I think physically and mentally I were addicted gradually without my aware. My first obsession when entering to casino was to get some money for setting up business but the ultimate goal was totally illusion because when I won, I still played until I lost back and lost more and most of the time, until no money in the pocket. (ATM fully drawn to daily maximum).How I falled into problem
In October 98,my friends … came to me and asked me several times to help their family to set up property development business in Australia. In the beginning, I rejected their request because I did not have any enthusiasm. However they still insisted me to become the directors and offered me, share bonus in the company. I tried to keep distance with their business but finally I accepted their offer with the condition that I will set up a business consultant company and I will only assist them in advising and arranging in their business needs. Up to now, they have 4 projects, which helped by me and the business will be profitable.
In January 99, another friends came to me for help for a similar business and I assisted them to set up [2 named companies]. They have one project and also will be profitable.
After I lost all my money, I was panic to recover it and at that time, evil acts influenced me. With the excuse in mind that I borrowed temporarily from my friends and when winnings then I returned to them and consideration in long term friendship, it shall be OK. This was my stupid thinking. Unfortunately I lost and then become vicious cycle, When I won, I deposited back and but my lost was bigger and bigger because when the hole became big, I played bigger and then lost bigger and played bigger again and then lost everything. I was really out of control. In business calculation, I can think very far but in gambling table, I only can think not beyond my nose. Now, my closed friends and my whole family suffered because of my evil acts. I extremely regret what I did. I only can repay it with my sentence.
…". (sic)
Asked how his abovementioned offences were discovered, Mr Haman said that he went to the police station and admitted what he had done. He said that he formally pleaded guilty to those charges on 6 December 1999. He added that the presiding judge was prepared to grant him bail but that he declined the offer of bail and elected instead to be taken into custody because of the "mistakes" that he had made.
Mr Haman said that at the time of his incarceration he had intended to continue to conduct his business, "Bestlink", in Australia, but that after he was incarcerated, he was not permitted to carry on the business from prison.
Asked what the consequences would be for him and his family if his visa were cancelled, Mr Haman said that his wife and their 3 children would suffer hardship because they have no home, no assets and no business in Indonesia. He added that the education system in Indonesia is very different from that in Australia and that his children's education would be "in a mess" if they returned to Indonesia. He said that his daughter (Melissa) had this year commenced tertiary studies at Royal Melbourne Institute of Technology, his older son (Agung Pribadi) was in Year 10 at High School, and his younger son (Oscar) had just entered pre-primary school.
In cross-examination Mr Haman acknowledged that he perpetrated the fraud offences in May-October 1999, for which he was subsequently imprisoned, in the course of conducting his business, "Bestlink". He elaborated that he accessed money in his clients' bank accounts by forging their signatures. He added that he felt very guilty about his actions and was unable to sleep because of this "heavy problem", and so he went to the police and admitted his guilt.
Mr Haman said that his wife and children are presently living in Victoria. He explained that his wife's only relatives in Australia lived in Melbourne and when he was incarcerated his wife and the children moved to Melbourne in order to be close to her relatives and to receive "moral support or spiritual support" from them. He said that he speaks with his wife and children "almost every day" on the telephone.
Mr Haman said that his mother, 3 sisters and 2 brothers live in Jakarta, Indonesia, and that he keeps in contact with them. He added that he also has friends living in Indonesia.
The Evidence of John YatesDr Yates told the Tribunal that he is presently website editor and a part-time pastor of the South Perth Church of Christ. He said that he was formerly Co-ordinator of Theological Studies at Tabor College, Perth and that it was in that capacity that he became acquainted with Mr Haman. He confirmed that he had written two character references for Mr Haman, dated 1 May 2001 and 13 August 2001, for the purpose of these proceedings. The reference dated 1 May 2001 states:
"I have been asked to write a reference letter for Mr Janto Haman, who is appealing against an extradition order (sic) on the basis of a criminal conviction.
I wish to affirm that Janto is currently engaged in theological studies with Tabor College. He enrolled with our external studies department in Adelaide in August of 2000 and has successfully completed two of our units for the Bachelor of Ministry course. I visit Janto on a regular basis as his Perth based tutor. He is making good progress in his academic studies in theology and his written work has improved considerably.
In my experience, Janto is a classical case of a jail conversion. He has connected with the Roman Catholic prison chaplain and Prison Fellowship and receives prayer whenever I visit. Whatever his past offences, none of which he denies or is anything but ashamed for, he is now a model student and, as far as I can ascertain from his prison situation, model prisoner. He is entrusted with administrative tasks in the unit in Casuarina where he is presently interned.
Janto, in my estimation, would present no threat to the Australian community if allowed to remain in the country. To the contrary, he is desiring to finish a Ministry course, and could be expected to work in socially constructive areas, such as rehabilitation of gambling addicts (the area of his fall). The deportation of the Haman family is likely to cause unnecessary hardship and rob our nation of someone who would prove to be a force for good in the community."
The reference dated 13 August 2001 states:
"This is a character reference prepared for the review appeal of Janto Haman at the Adminstrative Appeals Tribunal.
I have now known Janto for a period of twelve months, as he commenced external studies with our college in August 2000. I visit Janto on a regular basis in the capacity of theological tutor. During his time of study he has completed five of our units for the degree of Bachelor of Ministry. This is approximately half of a full time load for an internal student. Such an effort testifies, I believe, to the fact that Janto is assiduous in his efforts to understand the Christian faith to which he has become committed. His level of reasoning, questioning and discernment of spiritual and theological matters is of quite a developed order. In addition to the above, Janto is regularly involved in the spiritual dimension of life in the prison. This includes the Prison Fellowship and chapel services. I cannot believe that his study and spiritual discipline is merely a ruse to present an appearance of a reformed character.
I have however had experience with several other persons who upon their release from incarceration, or within an interregnum in relation to such, posed as persons of piety with the express intention of duping the relevant authorities. I find none of these qualities in Janto. To the contrary, he is a very submissive and remorseful individual.
Within Casuarina Janto has been given special administrative tasks that carry within themselves a security risk. This is indicative of the perception within the prison that he is a trustworthy person.
In my opinion Janto would present no risk to the Australian community if allowed to reside in our nation. I have every expectation that he would complete his ministry degree. His desire is that this might lead at some future time into spheres of counselling those with gambling addictions. On the business side, an area where I am significantly less competent to comment, I consider that Janto's past history indicates a capacity to make a significant contribution to the prosperity of Australia.
Finally, I am very conscious of the hardship a rejection of this appeal would bring to the other members of the Haman household. The deportation of Janto and his kin will result in unnecessary hardship and rob our land of someone with very significant talents."
Dr Yates told the Tribunal that Mr Haman had inquired about the possibility of undertaking theological studies through Tabor College and that he subsequently became Mr Haman's theological tutor and, in that capacity, visited him in prison on a regular basis (fortnightly or sometimes monthly) from August 2000. He said that each visit was of one hour's duration and would involve a discussion of Mr Haman's theological studies and written work, and also his family, his personal situation, his spiritual concerns.
Dr Yates said that Mr Haman had told him that he was in prison because he had stolen money – that he had been "involved with a business situation that wasn't working, and that he went to the Casino in order to try and get out of this situation, and then he got further into straits". Dr Yates acknowledged, however, that he was unaware of the details of Mr Haman's offences, including the period over which they were commited and the amount of money involved. He added, however, that he was aware that the offences Mr Janto had committed were serious.
Dr Yates confirmed that it was his opinion that Mr Haman was genuinely remorseful for the offences he had committed and was also sincere in his undertaking theological studies. He referred in particular to Mr Haman's humility and the "very significant effort" that he put into his studies and the "high level of insight in theological studies" that he had achieved. He continued:
"…to me he presents as someone who has a genuine passion and interest in preparing himself for Christian ministry…from what I observe about his character, his demeanour, his spirituality, and his proficiency in theological studies, in every way he has made a concerted effort to better his life and put himself in a position, when he is released, to make a contribution, a positive contribution, to society."
(Transcript, p14)
In cross-examination Dr Yates was asked to explain his statement, in his letter of reference dated 1 May 2001, that Mr Haman was "a classical case of a jail conversion". He responded:
"Well, my experience is that there are a significant number of people in the Christian community, in at least the four States in which I have resided, who have got themselves into serious trouble with the law; gone through a moral crisis which has become something of a spiritual crisis; and in the midst of that crisis, undergone a transformation of character. And after that they have become exemplary citizens. And my personal conviction is he is one."
(Transcript, p16)
Asked whether he had had any training or practical experience as a psychologist, Dr Yates responded that he had 3 years of psychological training as part of an undergraduate BSc degree but that he was not qualified as, and did not practise as, a psychologist. He added, however, that he has been engaged for the last 20 years in pastoral counselling in which he has dealt with people's emotional problems, psychological problems, marital problems, sometimes financial problems, as well as spiritual problems. He further added that he is a member of the Board of a Christian counselling group in Perth and that he has written articles for professional journals in relation to counselling. He acknowledged, however, that he had "very limited" experience with people with gambling addiction, and that he had not counselled Mr Haman specifically in relation to gambling issues.
The Evidence of Ronald Wulff
Mr Wulff told the Tribunal that he is a Senior Constable in the Western Australian Police Service and he described his position as "lockup keeper" at the East Perth lockup. He told the Tribunal that in November 2001 Mr Haman made an application to complete his prison sentence as a "trusty prisoner" at East Perth lockup, and that, after his application and prison record were assessed, his application was granted. Mr Wulff said that the main criteria for selection as a "trusty prisoner" are that the prisoner have no record of violence and have less than 12 months of their sentence remaining to be served, and that Mr Haman met those criteria. He said that Mr Haman's duties as a "trusty prisoner" comprised cleaning and gardening duties and did not involve handling any money. He said that he understood that Mr Haman was due to be released on work release in February 2002.
The Evidence of Gerald BurnsMr Burns told the Tribunal that he is a psychologist registered with the Psychology Board of Western Australia, having graduated from Edith Cowan University in 1998. He said that he met Mr Haman when, on the invitation of the Deputy Superintendent of Hakea Prison, he conducted a course for gamblers in that prison and Mr Haman, who was then an inmate at that prison, attended that course. He confirmed that he had prepared a "psychological overview", dated 6 March 2002, regarding Mr Haman's participation in that course (Exhibit A5). He explained that he preferred to describe it as an "overview" rather than a "report" because it related to Mr Haman's membership of a group which attended the abovementioned course and constituted a "overview" of his membership of that group rather than a specific report which related exclusively to Mr Haman. Mr Burns' "psychological overview" states as follows:
"I am a Psychologist in private practice registered with the Psychology Board of Western Australia. During September 2000, the Deputy Superintendent at the time, Mr Leon Carberry, enquired about the possibility of running a group for those prisoners who could identify a gambling problem. Gambling is endemic in prison populations and can be a difficult and ongoing problem from some convicted men. Anne Blair is a Psychologist who works in the Forensic Case Management Team at Hakea Prison. Anne and I met twice to talk about the structure and content of a gambling program that we could implement. The group was advertised in the various prison blocks. Janto Haman was one of the prisoners who applied and was accepted into the group.
Janto presented as a man of happy disposition. From the first meeting of the group, it was evident that he had identified gambling to be the foundation of the problem that led to his prison sentence. It is not unusual for prisoners convicted of a gambling offence to deny that gambling was the real problem. It seems obvious when looking in from the outside, but some men are reluctant to own their gambling problem. Janto was keen and industrious, he definitely appeared to be repentant. He was always supportive to the other group members. I wondered why he had been convicted of his crime. Of course I knew that gambling was at the base of the charge that had been brought against him. He is a highly intelligent man who seemed to have integrity, morality and a good value system. He is very attached to his family and was conscious of the embarrassment that he had brought to them. The gambling problem that brought him to prison seemed out of character. His time in prison triggered an interest in religion and spirituality. He told Anne and I that he planned to study and apply to enter the ministry. This seemed to make sense. Janto appeared to have undergone great change from his time in prison. He realized that he had brought great pain to his victims. He said that he was aware that gambling could be an ongoing temptation. He has learned strategies to deal with the problem if it surfaces. He is devoted to his family and I believe that the risk of reoffending is minimal. I certainly support him in his negotiations with your department."
Mr Burns confirmed that that "overview" accurately reflected his opinion regarding Mr Haman.
Mr Burns told the Tribunal that he is also a qualified pharmacist and that, prior to his psychology studies, he had worked for 15-20 years as a counsellor in relation to substance abuse and other addictive behaviour, including gambling. He added that he was presently undertaking (and had almost completed) a Master's degree in Community Psychology, with an emphasis on addictive behaviour. He also told the Tribunal that he had been a Justice of the Peace for about the last 6 years.
Mr Burns said that the course for gamblers which he conducted in Hakea Prison and which was attended by Mr Haman consisted of 12 weekly meetings each of 90 minutes' duration. He said that he felt that some members of that group would not have gained any benefit from it, but that Mr Haman did not fall into that category. On the contrary, he felt very confident that Mr Haman had learnt from his experience and that, upon his release from prison, he would "strategise his life so that he wasn't in a position ever to offend again".
The Evidence of Dr Boon LokeDr Loke told the Tribunal that he is a Consultant Psychiatrist and that he had assessed Mr Haman on 20 March 2002 and had prepared a report dated 11 April 2002 (Exhibit A10). The contents of that report are as follows:
"…
Mr Haman's background history
Mr Haman was born of ethnic Chinese parents in Indonesia. He has an elder brother, three elder sisters and a younger brother. He said that his childhood was 'OK'. At school he was a bright student and his teachers liked him. At high school and university he often spent time teaching his fellow students the subjects they were learning. He completed a degree in Accounting. At age 26 he had become one of the highly paid managers in Indonesia. While working as a director of a publicly listed company in Indonesia, Mr Haman was also invited to lecture at a university on a part-time basis. Mr Haman later became the major owner of a chain of 18 clothing stores in Indonesia. In the 1990s his business had a turnover rate of US $100 million per annum. People entrusted their money with him and he 'took no money from anybody'. Mr Haman said that he had no previous criminal offences.Mr Haman's social circumstances and mental state around the time of his offence
In 1998 Mr Haman and his family migrated to Australia because there were riots and persecution of Chinese and Christians in Indonesia. Mr Haman's three main retail stores were burnt down by rioting mobs. Mr Haman suddenly lost the assets they planned to transfer to Australia. At that time he also felt 'lonely' and 'cut-off'. He had no other relatives or close friends in Australia. He was unable to share his financial problems with his relatives in Indonesia because they were still facing the unrest within Indonesia. Mr Haman started to gamble at the casino, thinking that he might be able to get back his personal wealth by winning in the casino, so that he could restart a business in Australia. Mr Haman said that he was not thinking clearly at the time. He recalled that his parents had always told him that gambling was 'bad'. Mr Haman did not gamble before he migrated to Australia. Mr Haman lost his own money at the casino. At that time he had clients and friends investing their money in his consultancy business. Mr Haman took out some of the money by forging their signatures in order to gamble, thinking that if he won he would return the money to his clients' accounts. However, Mr Haman lost more money. He said that he went into a state of panic and was frightened that he would lose his reputation in the business world. He took out more money and lost more in the casino. In November 1999, when he was unable to pay the builder, and his clients were asking about their funds, Mr Haman thought he had to disclose the truth that he had lost the money at the casino. On 3 November 1999 Mr Haman went to a police station to confess his wrongdoing. At the court hearing on 10 November 1999 Mr Haman said that he asked the judge to sentence him immediately but the judge said that he must have a lawyer to defend him. Mr Haman said that he told his lawyer that he wanted to go into custody because he felt guilty and believed that he deserved punishment. Mr Haman said that he went to Hakea remand centre on 6 December 1999.Mr Haman's social circumstances and mental state while in custody
Mr Haman said that one week after his arrival at prison he felt 'closer to God'. He went to the cathedral. He said that he was 'drawing closer to God'. About two weeks later he stopped smoking. Previously he had smoked about three packets of cigarettes a day. Mr Haman said that he decided he would quit his past bad habits. He has not taken up smoking again since that time. While in prison there were people playing cards and gambling but Mr Haman said that he did not join in and had no interest in doing so. In September 2000 Mr Haman started correspondence study at Tabor College for a Bachelor degree in Ministry. Mr Haman said that Dr John Yates had visited him in prison to teach him and he had finished 7/24 units of study. Mr Haman said that during his two years in prison he coped well. He felt 'the blessings' (from God). He said that other prisoners and the prison officers seemed to like him. Mr Haman thought that in the past he was a high achiever and businessman. He made 'programmes to achieve results'. His prison sentence had been 'a break' and he had started 'the part two of my life'. He decided to 'commit to my priority to God and trust him'. He also decided that it was 'the process of achieving his goals' that was more important than the results. He thought that he wanted to be 'more sensitive to people around him' and 'be wise, only to do the right thing, but also to do it in a wise manner'.Mr Haman's current mental state
Mr Haman said that he was released from prison through the Community Work Release programme on 22 February 2002. He had had no craving or desire to gamble or smoke. He did not even have the desire to spend time playing cards. He now enjoyed talking to people and bringing people to church. He said that he had no problem facing people. He was willing to tell others who he was, that he had a previous conviction and he had learned from his past mistake. He was currently undertaking six units of his Bachelor degree course in Ministry. He had started a consultancy business called 'Best Link' and was interested to learn about 'ministering at the workplace' from Dr John Yates and another businessman called Timothy Teh.Mental state examination findings
On 20 March 2002 I noted that Mr Haman was an overweight Chinese man. He did not appear depressed but was mildly anxious. He had a good range of emotional expressions. He spoke at a normal rate with an accent. He had no delusion or hallucination. He was alert and his cognitive functions were intact.Psychiatric diagnosis
On 20 March 2002 I did not diagnose Mr Haman as suffering from any psychiatric illness. According to his description of his mental state at the time of the offence, I think that he might have adjustment disorder with disturbed conduct as he was facing a lot of stresses and reduced social support. His gambling and fraudulent behaviour would appear to me as out of his usual character. Mr Haman appeared to have recovered from his adjustment disorder soon after he went to prison.My opinion on Mr Haman's risk of recidivism
From the information available to me Mr Haman did not appear to have a history of recurrent fraudulent behaviour or a long history of gambling behaviour. His behaviour in 1998 and 1999 was out of character and in the context of severe stresses in his life. He appeared to have shown genuine remorse and had taken active steps to change his priorities in life and to stop his 'past bad habits', such as smoking. Therefore it is my opinion that Mr Haman's risk of recidivism is minimal."
In his evidence-in-chief Dr Loke said that, on the basis of his interview of Mr Haman, his opinion was that Mr Haman's gambling and associated fraudulent behaviour involved an error of judgment. He expressed the opinion that Mr Haman does not have a compulsive disorder (including a compulsive gambling disorder) and he confirmed that it is his opinion that the risk of recidivism in Mr Haman's case is minimal.
In cross-examination Dr Loke said that he completed his university medical degree course in 1983 and obtained his Fellowship qualification in 1994. He said that he practises in general psychiatry and has a special interest in the psychiatric problems of older people. In relation to gambling, he said that he has made assessments of, and treated, a number of patients with gambling problems.
As regards Mr Haman, Dr Loke said that he was generally aware of the nature of the offences committed by Mr Haman and that a significant amount of money was involved, but that he was unaware of the precise details, such as the number of offences committed, the period over which they were committed, and the amount of money involved.
As regards the opinion he expressed that the risk of recidivism in Mr Haman's case is "minimal", Dr Loke confirmed that that opinion related to both gambling behaviour and fraudulent behaviour.
The Evidence of Helen FowlerMs Fowler is a registered psychologist and has been in private practice since 1995. She has had extensive experience in the assessment and treatment of offenders within the criminal justice system, and has lectured, presented papers and conducted workshops in the area of addictions, including gambling addiction. Ms Fowler interviewed Mr Haman on 8 and 15 April 2002 and prepared a comprehensive report dated 24 April 2002 (Exhibit R5). Ms Fowler confirmed that the contents of that report are true and correct. The report sets out Ms Fowler's qualifications, the assessment procedure, Mr Haman's presentation at the interviews, the relevant social history, and continues:
"…
According to Mr Haman in September 1998 friends visited from Indonesia and wanted to visit the Burswood casino. He said 'went to take, first I watch see people winning, consistent winning'. Mr Haman said he observed the blackjack tables and that he watched others playing the tables for some time.
According to Mr Haman he had been raised to believe gambling was 'evil' and 'bad' and for that reason he had never gambled before however, he said when in Australia he told himself that if Australian government 'allow gambling it must be okay'. Clinical impressions were that Mr Haman utilised cognitive distortions to justify his gambling in order to psychologically 'override' his reportedly being raised to believe gambling was 'bad'.
In describing his gambling activity Mr Haman said 'I didn't know how to play sometimes they draw card, sometimes they didn't'. He said he observed that 'some people were consistently good…try to learn but not sure' how to play. Mr Haman said that he returned a 'few weeks later' and that a lot of thing were 'building inside me'. He said that after losing money on his house he had 'nothing' and felt that gambling gave him the 'hope' that he could win back money and 'solve my problems'.
He described initially attending the casino a couple of times per week and playing with $100-200 on each occasion. His attendance steadily increased and he reported that three to four months prior to 'handing' himself into the police he was attending the casino "almost every day for 3-4 hours". He reported telling his wife he had business appointments and of the time in the casino 'passing quickly'. Discussions with his wife confirmed that Mr Haman had 'hid' his gambling from her. She described her husband as a 'good father and husband' and said he 'does not gamble before'. She did however, also acknowledge that she had no concept of the financial issues related to their business interests at any time and that she has been reliant on Mr Haman for those issues and she cares for the home.
At the time he began fraudulently accessing money belonging to his clients Mr Haman reported behaving in a manner consistent with his being a problem gambler. He became focused on going to the casino, his bets became larger and he was chasing his loses. He was lying to others about his activities and proceeded to obtain money illegally to enable him to gamble. Despite several attempts to have Mr Haman describe how he felt prior, during and after gambling activity he was unable to identify the feelings either emotional or physiological. He was able to say that in the early stage of his gambling he was able to 'forget' his problems. Mr Haman reported gambling in both the general area and the international room of the Burswood Casino. His bets increased from $25 to $2,000 per deal. According to Mr Haman between September 1998 and April 1999 he was not in financial trouble from the gambling. He said he still had his original $25,000 but that in April he lost all of the $25,000 and then began offending.
As his gambling continued he increasingly lost more money until his losses were too great for him to return the money. Therefore, when it came time for the money he had fraudulently obtained to be available for its originally intended use Mr Haman realised he would never be able to 'cover' the loss and went to the police station to 'hand himself in'.
In describing his gambling and his commitment to not gamble again Mr Haman said, 'I believe I will not gamble anymore, what I did was stupid, from beginning gambling bad what my culture tell me true, I will not be a stupid idiot anymore, not logic, can't win.' Furthermore he said 'prison real, not illusion, gambling illusion not real'.
When asked if he had voluntarily banned himself from the Burswood Casino, Mr Haman said he had not.
In documents written by Mr Haman apparently in November 1999 he attempts to externalise blame for his offending. Rather than taking responsibility for his manipulating others who trusted him he indicated that if [Mrs S] had stopped payment to his personal account the 'damage would not be so big'. He also in another document suggests that cameras in the casino watching him were somehow linked to his failure to 'win'. However, during my current interviews with him in April 2002 he appears to have had his distortions and erroneous beliefs challenged in counselling and now impressed as understanding the issues surrounding problem gambling, and accepting of responsibility for his actions which led to the offending and imprisonment.
Although in a letter dated 28th February 2001 he refers to a psychiatrist indicating that his 'sudden involvement in gambling was compensation of my deep depression' at the time I interviewed Mr Haman he was unable to provide any description of his feelings or actions that were suggestive of depression. His description of his behaviour and his stressing the 'insecurity' he felt at the loss of money and business was in my opinion more suggestive of anxiety and emotional distress at his situation which he was unable to manage that led to his becoming involved with gambling. He said, 'In Indonesia I had everything, driver two maids, travel once per year, good life never worried about money'. It appeared that Mr Haman suffered problems adjusting to his new position, feeling some sense of shame.
Mr Haman became involved with religion while in prison leading to him beginning study with Tabor College for a Bachelor Degree in Ministry (religion). He reported that he continued to attend a non-denominational church fellowship on a regular basis (up to 4 times per week) while in the community, although he said he is of the Catholic faith. Mr Haman indicated that he perceives his imprisonment as a 'break' for him and that this part of his life is the 'second part', where he will now place more focus and attention on his family and 'god' than on success. He informed me that the second part of his life has to 'be better'. It is noted however, that he started up his business 'Bestlink' again within two weeks of release on his current Work Release Order. This Community Based Order did not require that Mr Haman begin business dealings again, nor does his current visa status.
Mr Haman's speedy re-establishment of his business does however, appear consistent with clinical impressions that Mr Haman has an entrenched need to gain a sense of status and 'success' when in a community setting and further that he needs an avenue to express his entrepreneurial nature. This is not surprising given his history, both family and business, of success being valued.
There is no evidence to suggest that Mr Haman is currently refocusing on gambling to make money. His current business link with [MR V] is one where his offending is known and Mr Haman would receive a commission not a lump sum of money to disperse to others for payment of goods. However, there is also no evidence to indicate that Mr Haman is not placing himself in a situation where in the future he may have access to others funds. It is reasonable to suggest that individuals who have experienced a gambling problem and have stolen to enable their gambling to continue should avoid placing themselves in vulnerable situations where they may be asked to handle other people's money. This issue is usually addressed during the therapeutic process.
Offending
When asked how he felt about having lost so much money that individuals had trusted with him, Mr Haman described how one set of his victims visited him in prison which he viewed as their understanding that he was paying the penalty having gone to jail. When discussing issues related to his other victim and issues related to remorse, Mr Haman presented as uncomfortable discussing the issue instead stating that he had been punished by imprisonment. Clinical impressions were that Mr Haman's reaction was not evidence that he lacked remorse but instead suggested he found discussing the issue and analysis of his feelings too difficult, and therefore he reacted in a manner to avoid experiencing intense negative feelings.Psychological issues
At the time Mr Haman committed the offences he had a significant gambling problem. He reported no history of gambling prior to his arrival in Australia and his suffering a loss of financial status. From information provided by Mr Haman and observations made from interview clinical impressions gained are that Mr Haman has difficulty recognising and managing his emotions in a functional manner. He acknowledged that he has had a life that has tended to continue to 'go upwards' and that until relatively recently he has not had to deal with any major problems.Mr Haman also impressed as an entrepreneur who not only seeks the financial rewards business provides but also the adrenalin, and other emotions that are associated with the development of ideas and the drive to see them eventuate. Faced with a lack of money he appears to have become driven by his need to obtain 'big' money quickly to be able to invest and transform his idea of having a successful business in Australia to reality. Mr Haman's feelings of self-worth appear to have always been associated with his business successes and therefore the absence of a successful business venture is highly likely to have caused emotional distress to Mr Haman. Distress that Mr Haman lacked the insight to recognise or to address appropriately or adequately. I do acknowledge that Mr Haman appears currently aware of issues of 'shame' and 'losing face' that were an aspect of his becoming involved in problematic behaviour. However, currently Mr Haman presented, as continuing to lack the skills and insight required for him to recognise and associate specific emotions with particular actions. Unless he gains the skills and insight required to enable him to identify, regulate and manage his emotions more appropriately then the risk of his behaving in an illegal manner in the future remains.
Future goals
Mr Haman indicated that he wants to prioritise his children's lifestyle and education over his own needs. He considered that they would receive a better standard of both in Melbourne, Victoria where they currently live with their mother. He indicated to his Community Corrections Officer, and myself that he would like to move to Melbourne to be with his family as soon as the Parole Board approve the move. This will not be a possibility prior to his completing his Work Release Order.His wife Angela described Mr Haman as a 'good husband' and a 'good father'. She considered that their children's educational needs will best be met in Melbourne and to disrupt them now to return to Perth would be unfair. She said they initially went to Melbourne as she had a young relative there and their father's imprisonment was distressing for his family. Angela and her father who came to visit her in Melbourne flew to Perth to visit Mr Haman on one occasion during his term of imprisonment.
[Mr V] said that he considered Mr Haman to be a genuine man and was hoping Mr Haman would be able to assist him to import some goods needed for his business from Indonesia. Their business agreement does not provide Mr Haman with access to [Mr V's] business money.
Summary
Mr Haman presented as a likeable and enthusiastic man of Chinese origin. He appears to have developed a gambling problem as a result of his attempt to gain a large sum of money quickly to invest in the business he wanted to establish in Australia. It is considered that he might benefit from insight orientated therapy to enhance his ability to identify and regulate his emotions more functionally. Unless he gains the skills and insight required to enable him to identify, regulate and manage his emotions more appropriately than he has in the past there remains a risk that he might behave in an illegal manner again."Although Ms Fowler gave oral evidence, that evidence, in the Tribunal's opinion, did not add significantly to the contents of her abovementioned comprehensive report and, accordingly, no useful purpose would be served by setting out her oral evidence here.
Additional Documentary Material Tendered in Evidence by Mr HamanA letter from Paul Gill, Senior Anglican Chaplain, dated 24 May 2001 was tendered in evidence (Exhibit A4). The Tribunal notes that Mr Gill did not give oral evidence. The contents of Mr Gill's letter are as follows:
"As the Senior Anglican Chaplain in Casuarina Prison, I write to you on behalf of Mr Janto Haman, his wife, Mrs Angela Suryani Linda and their children, Ms Melissa Haman (17 years), Mr Agung Pribadi Haman (14 years) and Mr Oscar Haman (4 years).
As you know Mr Janto Haman is a prisoner here at Casuarina Prison serving a 7 (seven) years sentence (eligible for parole), for fraud charges. He came into custody on 6th December 1999 and he will be released on 5th August 2002 or six months earlier if he can get approval for work release on 5th February 2002. He is a minimum-security prisoner. He is now waiting for the transfer to Karnet farm minimum-security prison.
He and his family may be subject to deportation, therefore they are now appealing the decision from Department of Immigration and Multicultural Affairs. If you examine his Ministry of Justice file, you will see that his current sentence is for a first offence and almost certainly his last. In other word, he is not a habitual criminal and it is highly unlikely that he will offend again. I believe he and his family are people who will make a positive contribution to Australian society given further opportunity to remain here. A combination of circumstances and heavy depression led to his offence and imprisonment. He has learnt his lesson from these events and is well able to build up a sound financial and profitable business on his release.
…It is my hope that you will take into consideration the issues outlined above and that they will not be deported to Indonesia.
…".
A bundle of documents comprising 86 pages was tendered in evidence (Exhibit A1). Included in that bundle of documents are a statement by Angela Linda (Mr Haman's wife) and letters from 2 of their children, namely Melissa Haman and Agung Pribadi Haman. The Tribunal notes that Ms Linda and those children did not give oral evidence. Ms Linda's statement, dated 16 July 2001, (pp 64-65) is as follows:
"I am 39 years old. I am wife of Janto Haman. We married in 1983 i.e. 18 (eighteen years ago). During these last 18 years, my husband (Janto Haman) has been the only income seeker in our family. My role is as housewife and mother of our three children (17 years, 14 years and 4 years). I am not a career woman, therefore I never involved myself in business or any employment. My last education was year 12.
Janto Haman is an excellent husband and an excellent father for our children. My husband is a respectful person in our community. He was a lecturer in the University in Indonesia. He has a Bachelor degree in Economics and Accounting. He is also a certified accountant. He is a successful businessman, therefore Australian Embassy in Jakarta-Indonesia has granted us the Australian Permanent Residency through Business Skills Migration, sub class 127 on 24 March 1998. Before financial crisis and anti Chinese & Christian in Indonesia, he had 18 retail chain stores (clothing) in Indonesia. In second half of 1997, Indonesia entered to a political and financial crisis. Subsequently, the organised brutal riot anti Chinese and Christian broke out on 13 and 14 May 1998. During this time, the brutal mobs looted, destroyed and burnt down Chinese business premises and residential houses. Because, we are Chinese, our business premises were one of the victims. In a very short time, my husband lost his business and personal wealth, which he had built more than twenty years.
I think that this sudden loss of business and personal wealth in Indonesia, had triggered him in a winning obsession from Casino. He built up a 'false hope' to overcome his past tragedy and pain. As a human being, he was weak to overcome with his sudden tragedy and pain, therefore he made mistake in Australia (In our home country, there is no casino because gambling is an illegal activity and prohibited by the law). However, the most important is that he has learnt his lesson from this mistake and accepted the reality of life. He admitted his mistake sincerely. He showed his remorse and contrition. I remembered very well that he walked to police station himself and confessed his wrongdoings to the police on 3 November 1999. After confession, the police let him go home by personal bail (without guarantor and surety bond). He told me that he wanted to go to custody on 6 December 1999, although Judge renewed his personal bail until 14 March 2000. He took full responsibility of his wrongdoing.
When my husband went to custody on 6 December 1999, I have a difficult life because suddenly I have to manage everything myself. Because I have my cousins in Melbourne, later my husband suggested me and children to move to Melbourne. Now, we have settled well in Melbourne with the support from Centrelink and my children's schools.
My children have adapted well with the new environment and also they have been doing well in their education.
My daughter, Melissa Haman (17 years) is now in year 12. She is very good in art and design. This course could not be taken in Indonesia. She plans to enter to University next year and takes the course, multimedia and graphic design.
My son, Agung P Haman (14 years) is now in year 9. He is interested well in computer science and technology.
My son, Oscar Haman (4 years) entered this year to Pre-primary school.The education system in Australia is not the same with Indonesia and also they have a different school term. If my children are deported to Indonesia, they will not able to continue their education again in Australia. Theoretically, they are entitled to apply student visa, but in the reality based on our current circumstances, I am not able to support their living and education expenses in Australia. The Australian Embassy in Jakarta will not grant the student visa for my children if I do not have a substantial amount of money in the bank (deposit). Besides this factor, for your information that the school fee for the foreign student (non permanent resident) is three or four times more expensive than a permanent resident. As a non-permanent resident, we will lose all the social benefits, which is needed badly by us during my husband's imprisonment .
My children will face another traumatic experience again in Indonesia due to on going persecution of Chinese and Christian in Indonesia. The deportation will remind them for the traumatic experience during the brutal anti Chinese and Christian in 13 and 14 May 1998.
We will face a severe hardship because my husband, the main income seeker will still remain in custody until 5 August 2002. We do not have anything left in Indonesia and we do not have a house to live in Indonesia. There is no social security/social benefit in Indonesia, therefore we do not see any future for my children in Indonesia. Every day, Indonesia faces with unrest, ethnic and religious cleansing and violence.
If our visas are not cancelled, my husband could be released earlier on 5 February 2002 through work release program. I am sure that my husband will be able to engage in his business again and support the family. He will be successful again in his business as what he had in the past. He has learnt his big lesson from his imprisonment and I have my full confidence in him for our better lives in the future. His current study in Bachelor of Ministry/Theology at Tabor College is a great asset for his future social work in the community. He will have a better sense of balance in his life and set the right priority in his life; God, family, church, people, environment." (sic) (original emphasis)
Melissa Haman's letter, dated 9 May 2001, (p59) states as follows:
"On 7th October 2001, I will be seventeen years old. I am now in year 12 at Windsor Presentation College, Victoria. I have a good talent in the art and design and now I am preparing myself to enter to the University for course Graphic design and or Multimedia in the next year (2002). I am confident that I would be valuable for Australian community and certainly I would have a bright future in Australia.
Two months before my arrival in Australia, I had experienced a traumatic situation in Indonesia. At that time, the indigenous people (brutal mob) attacked Chinese/Christian community, burnt down Chinese business premises and residential houses, and also attacked Chinese girls. (It was May 13 and 14, 1998). My father's business was severely damaged and destroyed by the brutal riot. Due to this traumatic memory, I do not want to live in Indonesia again. The deportation to Indonesia would destroy my hope and future life. In these last three years, I have adapted myself well in the Australian education systems and also the multicultural systems. I never thought that I would face a deportation to Indonesia. This is the most stressful moment for me.
I heard that Australian Government is now encouraging young skilful people from other countries to migrate to Australia (45,500 places), therefore I could assure you that in the next four years, I would be one of the skilful work forces (Bachelor degree in Graphic design/Multimedia) in Information Technology field (IT) in Australia.
I hope that you would allow myself, my brothers, my mother and my father to remain in Australia.
…". (sic)
Agung Pribadi Haman's letter, dated 9 May 2001, (p60) states as follows:
"I am now fourteen years old. I am now in year 9 at St Kilda Christian Brother College. Few months ago, I received Computer Award from my school. I like computer subject very much and in the future, I would like to continue my study in the University in Australia for the course, Computer Science.
Two months before my arrival in Australia, I had experienced a traumatic situation in Indonesia. At that time, the indigenous people (brutal mob) attacked Chinese/Christian community, burnt down Chinese business premises and residential houses, and also attacked Chinese girls. (It was May 13 and 14, 1998). My father's business was severely damaged and destroyed by the brutal riot. Due to this traumatic memory, I do not want to live in Indonesia again. The deportation to Indonesia would destroy my hope and future life. In these last three years, I have adapted myself well in the Australian education systems and also the multicultural systems. I never thought that I would face a deportation to Indonesia. This is the most stressful moment for me.
I hope that you would allow myself, my brother, my sister, my mother and my father to remain in Australia.
…". (sic)
Additional Documentary Material Tendered in Evidence by the Respondent
The Tribunal has also had regard to the documentary material (in addition to Ms Fowler's abovementioned report – Exhibit R5) tendered in evidence by the respondent (Exhibits R1-R4), including Migration Series Instruction No 133 entitled "Visa Cancellation under Subdivision G – Cancellation of Business Visas", dated 30 May 1998, issued by the Department (Exhibit R2).
The LegislationSection 134 (in Subdivision G – "Cancellation of business visas" – of Division 3 of Part 2) of the Act relevantly provides:
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c)does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c)intends to continue to make such genuine efforts.
(3)Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a)business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c)research that the person has undertaken into the conduct of an eligible business in Australia;
(d)the period or periods during which the person has been present in Australia;
(e)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g)business activity that is, or has been, undertaken by the person;
(h)whether the person has failed to comply with a notice under section 137;
(i)if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a (sic) day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).
…
(4)Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person's business visa under subsection (1) or (3A); and
(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person's business permit or (sic) business visa by giving written notice to that person.
(5)The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
(6)The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
…
(9)The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa – on the day on which that first visa was granted; or
(b) it its holder was not in Australia when he or she was first granted a business visa – on the day on which its holder first entered Australia after that first visa was granted.
(10) In this section:
business visa means:(a) a visa included in a class of visas, being a class that:
(i)has the words 'Business Skills' in its title; and
(ii)is prescribed for the purposes of this paragraph; or
…
that is or was granted on or after 17 February 1992.
…eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development or business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
…
family member's visa means a business visa held by a person:(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
…
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
…".
Section 135 of the Act relevantly provides:
"(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i)if the notice is given in Australia – 28 days after the notice is given; or
(ii)if the notice is given outside Australia – 70 days after the notice is given.
(2)The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
...".
The Issues
The respondent concedes that Mr Haman has "obtained a substantial ownership interest in an eligible business in Australia", within the meaning of s 134(1)(a) of the Act, and that, prior to his incarceration on 6 December 1999, he had been "utilising his … skills in actively participating at a senior level in the day-to-day management of that business", within the meaning of s134(1)(b) of the Act. The following matters, however, remain in dispute:
whether, at the time of the relevant decision under review (namely, the delegate's decision of 19 April 2001 to cancel Mr Haman's Business Skills visa), Mr Haman was "utilising his…skills in actively participating at a senior level in the day-to-day management" of the relevant "eligible business", within the meaning of s 134(1)(b) of the Act;
whether, at the time of the abovementioned decision under review, Mr Haman had "made a genuine effort to utilise his…skills in actively participating at a senior level in the day-to-day management of that business", within the meaning of s 134(2)(b) of the Act;
whether, in the event that the ground for cancelling Mr Haman's visa, referred to in s 134(1)(b) of the Act, is established, the correct or preferable decision is to cancel that visa in exercise of the discretionary power conferred by s 134(1);
whether, in the event that the Tribunal decides that the correct or preferable decision is to cancel Mr Haman's visa and accordingly affirms the relevant decision under review, a decision to cancel the Business Skills visa held by each of the members of Mr Haman's family unit made under s 134(4) of the Act "would result in extreme hardship to" each of those persons, within the meaning of s 134(5) of the Act.
An additional matter which was raised by Mr Kelly (for the applicants), but which was not addressed specifically by Ms Vavakis (for the respondent), was the effect, if any, on the validity of the decisions under review, of a failure by the delegate to "give due consideration to" representations made by the applicants in response to the Departmental notice of intention to cancel their Business Skills visas, as required by s 135(3) of the Act.
The SubmissionsThe representatives of the parties made oral and written submissions which may be briefly summarised as follows.
Mr Kelly (for the applicants) submitted that:
the decisions under review were legally flawed because the decision maker, prior to making those decisions, had failed to give any consideration to the written representations, dated 28 February 2001, made by the applicants in response to the Departmental notice of intention to cancel their Business Skills visas, dated 22 February 2001, and that such failure on the part of the delegate constituted a non-compliance with the requirement prescribed by s 135(3) of the Act and a denial of natural justice;
Mr Haman satisfied the conditions specified in s 134(2) of the Act in that he had made a "genuine effort to obtain a substantial ownership interest in an eligible business in Australia" (para (a)), namely "Bestlink", and that, but for circumstances beyond his control, namely his incarceration from 6 December 1999, he would have continued to make a "genuine effort to utilise his…skills in actively participating at a senior level in the day-to-day management of that business" (para (b)), and that he intended "to continue to make such genuine efforts" (para (c)), as evidenced by his activities in conducting that business since his release from prison in February 2002;
having regard to all relevant considerations in Mr Haman's case, the Tribunal should not exercise the discretionary power conferred by s 134(1) of the Act to cancel his Business Skills visa;
the other members of Mr Haman's family unit, namely his wife, Angela Linda, and their children, Melissa, Agung Pribadi and Oscar, would suffer "extreme hardship", within the meaning of s 134(5) of the Act, if their Business Skills visas were cancelled.
Ms Vavakis (for the respondent) submitted that:
by virtue of Mr Haman's incarceration from 6 December 1999, he had necessarily been prevented from "utilising…his skills in actively participating at a senior level in the day-to-day management of "the relevant" eligible business in Australia", namely, "Bestlink", and, accordingly, the ground specified in para (b) of s 134(1) of the Act was made out, thereby enlivening the discretionary power to cancel Mr Haman's Business Skills visa conferred by s 134(1);
in determining whether or not to exercise the discretionary power conferred by s 134(1) of the Act, the Tribunal may have regard only to evidence or material relating to relevant events, actions or intentions which occurred or were held prior to, or at the time of, the delegate's decision to cancel Mr Haman's Business Skills visa;
Mr Haman's engaging in fraudulent conduct in relation to his business clients, and gambling at the Burswood Casino for a substantial period each day, during the period from May 1999 to October 1999 were incompatible with the utilising of his skills in actively participating at a senior level in the day-to-day management of his business, or his making genuine efforts to do so, within the meaning of paras (1)(b) and (2)(b) of s 134 of the Act;
any intention that might have been held by Mr Haman "to continue to make such genuine efforts", within the meaning of para (c) of s 134(2) of the Act, was "negatived" when he commenced to engage in the abovementioned fraudulent conduct in May 1999 and continued to be "negatived" from May 1999 to the date of cancellation of his Business Skills visa, by reason of his ongoing fraudulent conduct until October 1999 and his subsequent incarceration from 6 December 1999;
the circumstances that led to Mr Haman's being unable to continue to fulfil the conditions referred to in para (b) of s 134(1), and paras (b) and (c) of s 134(2), of the Act were his own fraudulent conduct from May 1999 to October 1999 and those circumstances were not circumstances beyond his control;
the 82 offences of fraud and 5 offences of stealing as a servant, of which Mr Haman was convicted and for which he was sentenced to a total of 7 years' imprisonment, were not only very serious in themselves but they were also committed by him in connection with his business, "Bestlink", in that they involved the misappropriation by him of moneys belonging to clients of that business and a betrayal of the trust placed in him by those clients; and, furthermore, there is a risk that he will commit similar offences in the future upon his release from prison and the re-establishment of his business;
the Tribunal "must", in making its decision, have regard to the best interests of Mr Haman's children, in accordance with Australia's obligations under the United Nations Convention on the Rights of the Child, but the cancellation of Mr Haman's Business Skills visa, and the necessary resulting cancellation of his wife's, and his children's, Business Skills visas, would not, in all the circumstances, be incompatible with the children's best interests;
the cancellation of the Business Skills visas held by the other members of Mr Haman's family unit, namely, his wife, Angela Linda, and their children, Melissa, Agung Pribadi and Oscar, would not, in all the circumstances, result in extreme hardship, within the meaning of s 134(5) of the Act, to any of those persons.
Consideration and Findings
It is necessary for the Tribunal, before making findings in this matter, to determine whether the material to which it may have regard is confined to that which relates to relevant "events, actions or intentions" which occurred or which were held (as the case may be) prior to, or at the time of, the relevant visa cancellation decision which is under review , namely, the decision of 19 April 2001 to cancel Mr Haman's Business Skills visa (as submitted by the respondent), or whether it may have regard to material which relates to subsequent relevant "events, actions or intentions".
This issue has been the subject of differing approaches adopted by Deputy Presidents of the Tribunal in recent decisions on review of decisions cancelling Business Skills visas. In Re Tang and Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103 Deputy President McMahon said (at 105):
"The ordinary principles of administrative review apply. It is the function of this tribunal to deal with the question having regard to the evidence put before it at the time and having regard to all facts and circumstances that have occurred up until the date of the hearing."
In Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54, however, Deputy President Handley, following the approach adopted by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 at para 39, and in Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281 at 290 (which involved the cancellation of registration of professional qualifications), confined his consideration to relevant facts as at the date of the decision to cancel a Business Skills visa that was under review in that matter. The approach adopted by Deputy President Handley in Re Wong (above) is consistent with dicta of the Federal Court of Australia in recent cases relating to review by, respectively, the Immigration Review Tribunal, and (its successor) the Migration Review Tribunal, of decisions to cancel Student visas: see Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 526; Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at 264.
Having regard to the nature of the relevant decision under review in the present case, and having regard to the nature of the criteria specified in s 134 of the Act on the basis of which that decision was made on that date, the Tribunal agrees with the approach adopted by Deputy President Handley in Re Wong (above). Accordingly, for the purpose of reviewing the relevant decision in this case, the Tribunal will, in accordance with the respondent's submission, confine its consideration to material placed before it which relates to relevant "events, actions or intentions" which occurred or which were held (as the case may be) prior to, or at the time of, that decision – namely, 19 April 2001.
Did a ground for the cancellation of Mr Haman's visa, specified in para (a), (b) or (c) of s 134(1), exist?
It is common ground that Mr Haman was incarcerated from 6 December 1999 until February 2002 and that, during that period of incarceration, he was unable to, and accordingly did not, utilise his skills "in actively participating at a senior level in the day-to-day management" of his "eligible business", namely, "Bestlink". Accordingly, the Tribunal finds that, at the date of the delegate's decision to cancel Mr Haman's Business Skills visa (19 April 2001), the ground specified in para (b) of s 134(1) of the Act was satisfied and that, therefore, the discretionary power conferred by s 134(1) to cancel that visa was thereby enlivened.
A more problematic question is whether, at the date of the abovementioned decision to cancel Mr Haman's visa, the three conditions specified in paras (a), (b) and (c) of s 134(2) of the Act were satisfied (in which event, Mr Haman's visa "must not" be cancelled under s 134(1)).
Is cancellation of Mr Haman's visa prohibited by s 134(2)?The respondent concedes that Mr Haman, prior to the date of the decision to cancel his Business Skills visa, had not only "made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia", but indeed had in fact obtained such a substantial ownership interest when he established the business, "Bestlink", on 13 November 1998. In the light of the Tribunal's finding in relation to the condition specified in para (b) of s 134(2) of the Act (see paragraph 57 below), it is not necessary for it to express a view on whether that concession was correctly made (as regards the condition specified in para (a) of s 134(2)) or to make a finding on whether that condition is satisfied in this case.
As regards the condition specified in para (b) of s 134(2) of the Act, the Tribunal finds that Mr Haman, during the entire period of his incarceration from 6 December 1999 until February 2002, did not make a "genuine effort to utilise his … skills in actively participating at a senior level in the day-to-day management" of an "eligible business" in Australia, within the meaning of that paragraph. According to the evidence before the Tribunal Mr Haman's sole "eligible business" in Australia, namely "Bestlink", was completely dormant for the entire period of his incarceration. As regards the period from Mr Haman's arrival in Australia on 27 May 1998 until his incarceration on 6 December 1999, according to the evidence before the Tribunal, as soon as Mr Haman established "Bestlink" on 13 November 1998, rather than merely making a "genuine effort to utilise his…skills in actively participating at a senior level in the day-to-day management of that business" (as stated in para (b) of s 134(2) of the Act), he in fact did utilise his skills in the abovementioned manner. In the Tribunal's opinion, the phrase "has made a genuine effort to utilise…skills…" in para (b) of s 134(2) of the Act contemplates an inchoate activity only, which is separate and distinct from, and not part of, the substantive activity of actually utilising such skills. Accordingly, the Tribunal finds that at no material time did Mr Haman merely make a "genuine effort to utilise his…skills in actively participating at a senior level in the day-to-day management" of an "eligible business in Australia", within the meaning, and for the purposes, of para (b) of s 134(2) of the Act, and that, therefore, the condition specified in that paragraph is not satisfied in this case.
Given the above finding that the condition specified in para (b) of s 134(2) of the Act is not satisfied in this case, it is not necessary for the Tribunal to consider the condition specified in para (c) of that subsection.
It necessarily follows, from the Tribunal's finding that the condition specified in para (b) of s 134(2) of the Act is not satisfied in this case, that the Tribunal also finds that that subsection does not operate to prohibit the cancellation of Mr Haman's Business Skills visa in this case.
Should Mr Haman's visa be cancelled in exercise of the discretionary power conferred by s 134(1)?Neither s 134 of the Act nor the text of the relevant Departmental policy (Migration Series Instruction No 133, "Visa Cancellation under Subdivision G – Cancellation of Business Visas", issued on 30 May 1996 (Exhibit R2)) provides specific guidance in relation to the considerations that may, or may not, properly he taken into account in deciding whether or not to cancel a Business Skills visa in exercise of the discretionary power conferred by s 134(1) of the Act. The Tribunal notes, however, that the abovementioned Departmental policy document contains an attachment ("Attachment 2") which comprises a pro-forma "Notice of Intention to Cancel a Business Skills Visa under section 134 of the Migration Act 1958" to be sent to the relevant visa holder, which states (inter alia):
"…
In making the decision [whether to cancel the visa], the [Departmental] officer will take into account matters such as :
your engagement in the day-to-day management at a senior level in an eligible business (as defined in subsection 134(10) of the Migration Act 1958);
any evidence of genuine effort that you have made to engage in the day-to-day management at a senior level in an eligible business. (In assessing 'genuine effort' the officer will have regard to the relevant factors which, in accordance with subsection 134(3) of the Migration Act 1958, may be taken into consideration when considering cancellation of a Business Skills visa);
the length of time spent in Australia since your initial arrival in Australia;
the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled;
any unreasonable hardship you might suffer if your visa were cancelled;
your ties (including family, social and business ties) to other countries;
the circumstances in which the ground/s for cancellation arose;
the seriousness of the ground/s for cancellation;
your behaviour in relation to the Department, including the effort you have made to provide information to the Department when reasonably requested to do so under section 137 of the Migration Act 1958.
You may address any of these matters in your response.
…".
The Tribunal also notes that the Departmental notice, given to Mr Haman by letter dated 22 February 2001, of intention to cancel his Business Skills visa under s 134 of the Act (referred to in paragraph 10 above) was substantially in the form of the abovementioned pro-forma notice. In the Tribunal's opinion, the matters listed in the abovementioned pro-forma notice, and in the relevant notice that was in fact given to Mr Haman, are relevant considerations to be taken into account in making a decision whether to cancel a Business Skills visa under s 134(1) of the Act. The Tribunal also notes that that list of relevant considerations does not purport to be exhaustive, and is of opinion that that list of relevant considerations is not exhaustive. The Tribunal now turns to a consideration of those, and other relevant, factors in this case.
The seriousness of the ground for cancellation of Mr Haman's visa and the circumstances in which that ground arose
The ground on which Mr Haman's Business Skills visa was cancelled on 19 April 2001 was that he was "not utilising his…skills in the day-to-day management of "his" eligible business in Australia" (namely, "Bestlink"), within the meaning of s 134(1)(b) of the Act. The Tribunal has found (see paragraph 54 above) that that ground was satisfied in this case. The circumstances in which that ground arose were that, as from 6 December 1999, Mr Haman had been incarcerated and, by reason thereof, had been unable to, and accordingly did not, actively participate in the management of that business. The circumstances in which Mr Haman came to be incarcerated were that, on his own admission, he committed 82 fraud, and 5 stealing, offences during the period from May to October 1999 and he was subsequently convicted of those offences and sentenced to 7 years' imprisonment. The seriousness of those circumstances is clearly reflected in the following remarks of the sentencing Judge (Exhibit R3):
"…
You were born and raised in Indonesia where you carved out a successful business career before migrating to Australia in 1998. Once you arrived in this country, you approached or encouraged other Indonesian friends and acquaintances of Chinese origin to enlist your help in relation to pursuing business interests in Australia. Three companies were formed, companies owned by Indonesian interests, for the purpose of investing in ventures here and you were appointed to advise and carry out a management role in respect of their activities.
Importantly you were not appointed to handle moneys on behalf of the companies. Your role was to advise the companies and the entities behind them and to represent the companies in matter concerning negotiations and dealings involving an understanding of Australian laws and regulations. Despite the fact that you weren't appointed to manage moneys on behalf of the companies you fraudulently dealt with moneys which were sent to them from Indonesia. You fraudulently signed cheques drawn on accounts of the companies and you diverted moneys from the companies' accounts into bank accounts of your own.
In addition to that on five occasions you stole moneys belonging to the companies and that gives rise to the convictions of stealing as a servant. All these moneys were used by you for gambling purposes. The total obtained by reason of your criminal activities I have been told was $649,743. Some $210,391 has been recovered. There remains a shortfall of $439,532.
The persons behind the companies were, as I have mentioned, of Indonesian origin and they were hoping to establish themselves in Australia in a business sense and perhaps they or some of them were also hoping to settle in Australia. You have severely damaged them financially and you may well have ruined any chance that they had of coming to settle here.
…
The principal factors, or some of them, which ought to be taken into account in determining what sort of sentence you should receive in this case have been mentioned by counsel. They include a consideration of the degree of trust which was placed in you and the extent to which you breached that trust. It's fair to say that in this case your victims placed a great deal of trust in you. They, or a number of them, had little ability to speak English well. They were unfamiliar with Australian laws and regulations and with ways of doing business in Australia. They saw you as a person who could assist them in venturing into business activities in this country. You took advantage of the trust that was placed in you. You exploited that trust to satisfy your own greed and that is, I think, an important consideration.
It's also necessary to consider the nature of the offending in terms of the number of offences and the period of time over which they were committed. Here we are dealing not just with a one-off crime; we're dealing with 87 offences, by any measure a great number, committed by you systematically and cleverly over a considerable number of months. That again is, I think, an important consideration.
…".
The Tribunal accepts the respondent's submission that the abovementioned offences of which Mr Haman was convicted and for which he was subsequently sentenced to 7 years' imprisonment were very serious in themselves and that, furthermore, for the purposes of the present case, that high degree of seriousness was compounded by the fact that those offences were committed by Mr Haman in connection with the operation of his "eligible business", "Bestlink", in that they involved the misappropriation by him of moneys belonging to clients of that business and a gross betrayal by him of the trust placed in him by those clients.
On the other hand the Tribunal, having regard to the whole of the material before it, does not accept that there is a substantial risk that Mr Haman will commit such offences or engage in similar fraudulent conduct in the future. On the material before the Tribunal there is nothing to suggest that Mr Haman had committed any offences (business-related or otherwise) in Indonesia prior to his coming to Australia, or has committed any offences in Australia, other than those abovementioned offences for which he was imprisoned. Having regard to the expert psychiatric/psychological evidence before it, the Tribunal accepts Dr Loke's opinion that Mr Haman's offending behaviour in 1999 was "out of character" and occurred "in the context of severe stresses in his life" and that he appears to be genuinely remorseful for that behaviour and that the risk of recidivism in his case in "minimal". As regards the report and oral evidence of Ms Fowler, in the Tribunal's opinion Ms Fowler's assessment regarding Mr Haman is not fundamentally different from that of Dr Loke. The Tribunal notes that Ms Fowler did not suggest that Mr Haman lacked remorse for his offending behaviour and that she acknowledged that he appeared to be "aware of issues of 'shame' and 'losing face'" associated with that behaviour. As regards any risk of recidivism in Mr Haman's case, Ms Fowler's opinion was quite guarded. Far from expressing the opinion that there was in fact a risk of reoffending, Ms Fowler expressed her opinion conditionally as follows:
"Unless he gains the skills and insight required to enable him to identify, regulate and manage his emotions more appropriately than he has in the past there remains a risk that he might behave in an illegal manner again."
Ms Fowler also expressed the opinion, however, that Mr Haman "might benefit from insight orientated therapy to enhance his ability to identify and regulate his emotions more functionally". Finally, the Tribunal notes that Ms Fowler's reference to a risk of Mr Haman's reoffending, if he did not gain the abovementioned necessary "skills and insight", was expressed as a possibility ("might") rather than a probability or likelihood. The Tribunal also notes the opinion of Mr Burns (to which it attaches less weight than it does to the opinions of Dr Loke and Ms Fowler) that the risk of Mr Haman's reoffending is "minimal".
Accordingly, the Tribunal's assessment of the circumstances leading to the cancellation of Mr Haman's Business Skills visa is that those circumstances involved very serious fraudulent conduct, resulting in criminal convictions and a substantial sentence of imprisonment, committed in connection with the management of his "eligible business" in Australia, but that there are mitigating considerations, namely, that that conduct was out of character and was associated with severe stresses he was then experiencing by reason of the adverse circumstances in which he left Indonesia and the loss of personal wealth and the feelings of isolation he experienced upon his arrival in Australia, and that the risk of his reoffending in a similar manner in the future is very low.
Mr Haman's engagement in the day-to-day management, at a senior level, in an eligible businessIt is common ground, and the Tribunal accepts, that Mr Haman, from the date on which he established "Bestlink" (an "eligible business") in Australia, namely, 13 November 1998, until at least 30 May 1999 when he commenced his fraudulent behaviour, was engaged in the day-to-day management, at a senior level (indeed as sole proprietor and employee), in that business. As regards the period from 30 May 1999 until the date of Mr Haman's incarceration, namely, 6 December 1999, the Tribunal is prepared also to accept that Mr Haman continued to be engaged in the day-to-day management of that business, at a senior level, but that for the duration of that period he was also engaged in very serious fraudulent conduct in connection with the conduct of that business.
Mr Haman's future business intentions in AustraliaThe Tribunal accepts, on the basis of Mr Haman's evidence, that, at all material times, he intended to continue to hold a substantial ownership interest in, and to utilise his skills in actively participating at a senior level in the day-to-day management of, his eligible business in Australia, namely, "Bestlink", and that he maintains that intention. The Tribunal also accepts, on the basis of his evidence, that since his incarceration on 6 December 1999 his intention has been to conduct that business honestly and lawfully in the future.
The time Mr Haman has spent in Australia since his initial arrival in AustraliaFor the whole of the period since his initial arrival in Australia on 27 May 1998 Mr Haman has remained in Australia, except for 2 short visits to Indonesia, first from 31 May to 23 June 1998, and, secondly, from 13 July to 17 July 1998. (T14, pp 58-59)
Mr Haman's ties to other countriesAccording to Mr Haman's evidence (which the Tribunal accepts), his mother and his siblings (3 brothers and 2 sisters) live in Indonesia, and he has friends who live in Indonesia. The Tribunal is unaware that Mr Haman has any other ties to any other countries.
The hardship that would be caused to Mr Haman and members of his immediate family lawfully resident in Australia by the cancellation of his visaThe Tribunal accepts Mr Haman's evidence that he and his immediate family have no home, no assets and no business in Indonesia and that, having been settled in Australia since June 1998, their lives would be disrupted and they would consequently suffer hardship if, by reason of the cancellation of Mr Haman's visa, they were required to leave Australia and return to Indonesia. The Tribunal is also prepared to accept Mr Haman's evidence, and the contents of the statements by Ms Linda and their children (see paragraph 43 above), to the effect that the children's education and personal development would be adversely affected if they were required to leave Australia and return to Indonesia, thereby causing them additional hardship.
The best interests of Mr Haman's childrenIt is appropriate that the Tribunal, in determining whether cancellation of Mr Haman's Business Skills visa is the correct or preferable decision, regard the best interests of Mr Haman's children as "a primary consideration", in accordance with Article 3.1 of the United Nations Convention on the Rights of the Child which was ratified by the Commonwealth Executive on 17 December 1990 and which entered into force for Australia on 16 January 1991. The Tribunal notes that, because the provisions of that Convention have not been incorporated into Australian municipal law by statute, it is not legally obliged to act in accordance with those provisions (including Art 3.1), but that, by reason of the Commonwealth Executive's ratification of that Convention, there is a "legitimate expectation" that Commonwealth administrative decision makers (including the Tribunal) will act in accordance with its provisions (see, generally, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). Accordingly, the Tribunal will have regard to the best interests of Mr Haman's children as a primary consideration in determining this matter.
Mr Haman presently has 2 children (Agung Pribadi and Oscar) who are under the age of 18 years. Mr Haman's other child (Melissa) has recently (on 7 October 2002) turned 18. As regards Agung Pribadi (presently aged 15 years), he is, according to the material before the Tribunal (Exhibit R1), achieving highly in his secondary school education at Christian Brothers' College, St Kilda and, according to his letter of 9 May 2001 (Exhibit A1, p 60 – see paragraph 43 above), he does not wish to return to Indonesia but, instead, wishes to remain in Australia and to go on to study Computer Science at university and spend his future life here. Oscar (presently aged 5 years) has lived in Australia for most of his life and has commenced his primary school education in Melbourne. The Tribunal has no doubt that the best interests of both Agung Pribadi and Oscar will be served by their being raised by Mr Haman and Ms Linda in Australia, rather than in Indonesia, and that, accordingly, it would be in their best interests if Mr Haman's visa were not cancelled. The Tribunal notes, in this connection, that cancellation of Mr Haman's Business Skills visa (thereby rendering him an unlawful non-citizen) will, pursuant to s 134(4) of the Act, cause the Business Skills visas held by Ms Linda, Melissa, Agung Pribadi and Oscar also to be cancelled (thereby rendering them unlawful non-citizens), unless "extreme hardship", within the meaning of s 134(5) of the Act, can be demonstrated. In the event of cancellation of the Business Skills visas held by Ms Linda, Melissa, Agung Pribadi and Oscar, it may be that they would be able to apply for, and obtain, other visas enabling them to remain in Australia. The Tribunal, however, has no information regarding that possibility and it cannot be other than a matter of mere speculation.
Accordingly, as stated above, the Tribunal considers that a decision not to cancel Mr Haman's Business Skills visa would be in the best interests of his children aged under 18 years, namely, Agung Pribadi and Oscar. The Tribunal, as also noted above, regards that matter as a primary consideration, and therefore deserving of great weight, for the purpose of making its decision in this case.
Mr Haman's behaviour in relation to the Department, including the provision of information to the Department when reasonably requested pursuant to s 137 of the ActThere is no material before the Tribunal to suggest that Mr Haman has failed to provide information to the Department on request. Indeed be notified the Department, by letter dated 19 March 2000 (T9), of his fraud offences following his conviction and sentencing on 14 March 2000, and he promptly completed and returned to the Department (while in prison) the "Survey of business migrants" form (no 1010) in May 2000 (see paragraph 9 above). He also provided a timely written response to the Department's notice of intention to cancel his Business Skills visa in February 2001.
Conclusion having regard to all relevant considerationsIn having regard to the abovementioned considerations, the Tribunal has given the greatest weight to the circumstances in which the ground for the cancellation of Mr Haman's Business Skills visa arose (namely, the very serious fraud and stealing offences committed by Mr Haman in the period May-October 1999 in connection with the operation of his eligible business, "Bestlink", which resulted in his being sentenced to 7 years' imprisonment), and to the best interests of his children aged under 18 years (namely, Agung Pribadi and Oscar). As regards the former of those primary considerations, the Tribunal's discussion and overall assessment have been set out in paragraphs 62-64 above, and, as regards the latter primary consideration, the Tribunal's discussion and overall assessment have been set out in paragraphs 70-72 above. Balancing both primary considerations, the Tribunal's view is that, although the former consideration may, despite the relevant mitigating circumstances and very low risk of reoffending, point towards a decision cancelling Mr Haman's Business Skills visa, it is outweighed by the latter consideration (namely, the best interests of his children aged under 18 years) which, in the Tribunal's opinion, clearly favours a decision not to cancel that visa.
As regards the other relevant consideration discussed in paragraphs 65-69 and 73 above, the Tribunal's assessment is that they, like the consideration of the children's best interests, point in favour of a decision not to cancel Mr Haman's Business Skills visa.
The conclusion of the Tribunal is, therefore, that, having regard to all relevant considerations and giving the greatest weight to the abovementioned primary considerations, Mr Haman's Business Skills visa should not be cancelled in exercise of the discretionary power conferred by s 134(1) of the Act.
Other mattersIt follows from the Tribunal's conclusion that Mr Haman's Business Skills visa should not be cancelled that it also concludes that there is no basis for cancelling the Business Skills visas held by the other members of Mr Haman's family unit, namely, Angela Suryani Linda, Melissa Haman, Agung Pribadi Haman and Oscar Haman, under s 134(4) of the Act and that those visas should not be cancelled under that subsection.
In the light of the Tribunal's conclusion that the Business Skills visas held by the abovementioned other members of Mr Haman's family unit should not be cancelled under s 134(4) of the Act, it is unnecessary for the Tribunal to consider whether cancellation of any of those visas "would result in extreme hardship" to the visa holder concerned, within the meaning, and for the purposes, of s 134(5) of the Act.
Finally, in the light of the Tribunal's conclusion that the decisions under review (namely, to cancel the Business Skills visas held by Mr Haman and the abovementioned other members of his family unit) were not the correct or preferable decisions on the merits, it is also unnecessary for it to consider and determine the submission made by Mr Kelly (for the applicants) that those decisions were legally flawed by reason of the failure by the decision maker to give prior consideration to the written representations of the abovementioned visa holders, as required by s 135(3) of the Act. Furthermore, because that issue was not fully argued before the Tribunal, it would not be appropriate for it now to make a determination on that matter. However, as presently advised and having regard to the respondent's acknowledgment at the hearing that, contrary to the statements made in the decisions under review, written representations from the visa holders had been received by the Department within the specified period (see Transcript, pp 28-30, and Exhibit R1), and had (presumably) not been considered prior to the making of those decisions, there would seem to be much force in Mr Kelly's submission.
Decision
For the above reasons, the Tribunal sets aside the decisions under review and remits the matters to the respondent for reconsideration in accordance with the direction that the Business Skills (Migrant) (Class AD) (Subclass 127) visas granted to Janto Haman, Angela Suryani Linda, Melissa Haman, Agung Pribadi Haman and Oscar Haman should not be cancelled under s 134 of the Act.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ........(sgd V Wong)........................................
AssociateDate/s of Hearing 20 February, 8 May 2002
Date of Final Submissions 31 July, 2002
Date of Decision 29 October 2002
Counsel for the Applicant Ms L Horwood, Mr P Kelly
Solicitor for the Applicant Godfrey Virtue & Co
Counsel for the Respondent Ms R Vavakis
Solicitor for the Respondent Australian Government Solicitor
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