Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 536
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1214
GENERAL ADMINISTRATIVE DIVISION )
Re Julian Henry HEYWARD
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date17 July 2009
PlaceSydney
DecisionThe decision under review is affirmed.
…………………[sgd]………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation - character test - substantial criminal record - whether tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister’s direction issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied – primary considerations - protection of the community - risk of recidivism - risk of re-offending - requirement for proper, genuine and realistic consideration of interests of the children - other considerations - decision under review affirmed
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RELEVANT ACTS
Migration Act 1958 (Cth) (the Act): ss 499, 500, 501
Crimes Act 1900 (Cth): s 27
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CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
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OTHER AUTHORITIES
Direction No 21[superseded 15 June 2009 by Direction No 41]
Direction No 41
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REASONS FOR DECISION
17 July 2009
Professor GD Walker, Deputy President
Basic facts
1. The applicant Julian Henry Heyward was born in the United States of America in January 1953 and arrived in Australia on 1 January 1987 on a V12 visitor visa. He was granted a class BF (subclass 154) visa on 6 May 1992 on de facto spouse grounds. That visa continued in effect from 1 September 1994 as a class BF transitional (permanent) visa.
2. Between June 1992 and November 2003, the applicant was convicted of a number of criminal offences:
Date
Conviction and result
17/06/1992
Convicted on two counts of assault police, fined a total of $650 and placed on a two-year good behaviour bond [G4, annexure E, p69]
07/08/1996
Convicted of:
§ Drive with low prescribed alcohol content, fined $250 and disqualified from driving for two months; and
§ Unlicensed driving and fined $100 [G4, annexure E, pp69-70]
06/03/1997
Found to have breached an apprehended violence order (AVO). The AVO is made for two years [G4, annexure E, p70]
17/11/2003
Convicted of:
§ Wound with intent to murder within s 27 of the Crimes Act 1900 (NSW) and sentenced to a term of imprisonment of nine years and four months with a non-parole period of six years, four months [G4, annexure B, p48]; and
§ Take and drive conveyance without consent of owner and sentenced to a terms of six months' imprisonment [G4, annexure E, p70]
24/04/2009
Mr Heyward is re-notified of cancellation of visa consistent with the requirements of 501G(1) of the Migration Act 1958 (Cth).
3. On 5 March 2009, a delegate of the minister cancelled the applicant’s visa pursuant to s 501 of the Migration Act 1958 (Cth) (the Act). The notice of visa cancellation delivered to the applicant on 12 March 2009 contained a formal defect and he was renotified of the cancellation of his visa on 24 April 2009.
4. On 15 March 2009, the applicant was released from Grafton Correctional Centre and transferred to Villawood Immigration Detention Centre. He applied to this tribunal for review of the delegate’s decision on 24 March 2009. That application was out of time under s 500(6B) of the Act, but after the applicant was renotified on 24 April, the applicant reapplied to this tribunal for review of the delegate’s decision on 27 April 2009, within the statutory time limit.
5. At a telephone directions hearing on 1 May 2009, the tribunal was informed that the victim of the applicant’s wounding with intent to murder charge, Ms Nadia Monthulé, wished to be joined in the proceedings as a second respondent. The applicant indicated that he was opposed to that application, but it proved unnecessary to deal with the application. The respondent, concerned about the complications potentially arising from having a second unrepresented party in the proceedings, offered to prepare affidavits on behalf of Ms Monthulé and her supporting witnesses and present them as part of his case.
6. Following discussions with the applicant, Mr Simon Jeans, a solicitor advocate specialising in migration matters, by letter dated 26 May 2009 advised the applicant on a pro bono basis that in his opinion acceptance of those affidavits into evidence would establish a dangerous precedent, leading to the applicant being tried for the same crime as that for which he had been imprisoned.
7. If the minister sought to rely on that evidence, Mr Jeans wrote, he should make Ms Monthulé available to give evidence in person at the hearing, at which the applicant would have the right to cross-examine her. That, he considered, was contrary to public policy on the rights of victims and would place the applicant in the invidious position of wishing to test her evidence, which might appear inconsistent with the remorse he had expressed.
8. Further, the attitude of a victim was not identified as a relevant factor in Direction No 21 (which was still in force at the time). The community protection issue related to whether he was likely to re-offend, having regard to subjective and objective elements. The expectations of the community relates to the general community and not specific members of it. Mr Jeans recommended that the applicant lodge a complaint with the department’s chief lawyer with a view to having the evidence withdrawn before the hearing, and failing that to have the case assigned to another law firm.
9. Mr Jeans indicated that he did not object to the letter being made available to the tribunal if the applicant should wish to object to the evidence.
10. At the hearing the applicant did object to the evidence. I ruled that it was admissible as being relevant to the matters to be considered under the then applicable Direction No 21, in particular the seriousness of the offence and the risk of recidivism, as well as being evidence on the question of community expectations, which at that time were a primary consideration.
11. At the hearing, the applicant appeared in person, while Mr Anthony Orford of Clayton Utz appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person. For the applicant, Ms Bridget Allon and Mr David Allon also provided oral evidence in person with Mr Yat Sang Cheung, Mr Ian Bailey, Mr Wrothwell Wall, Mr William Upton and Mr Robert Small providing their evidence for the applicant by telephone.
12. After the evidence and submissions had concluded, the Minister for Immigration and Citizenship issued Direction No 41, which superseded Direction No 21 with effect from 15 June 2009. As Direction No 41 contained no transitional provisions, it became necessary to re-list the matter for further submissions in light of that development. At the resumed hearing on 3 July 2009, the respondent was represented by Mr Tigiilagi Eteuati.
Issues
13. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 41.
Relevant law and policy
14. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
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For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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15. “Substantial criminal record “ is defined in s 501(7) as follows:
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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16. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 3 June 2009, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 41, Visa Refusal and Cancellation under s 501. This replaced Direction No 21, issued on 23 August 2001. Direction No 41 contains no transitional provisions and came into effect on 15 June 2009. Paragraph 5.2 of Direction No 41, containing general guidance for decision-makers, notes inter alia that it provides direction to decision-makers with respect to performing functions and exercising powers under s 501 of the Act and that it is binding on all decision-makers. It gives guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non‑citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
18. The applicant had not lodged a witness statement, but I admitted his oral evidence on the basis that the matters about which he testified were already contained in the G documents (including pp 65-67) such that the respondent had notice of them, and that constituted sufficient compliance with s 500(6H) of the Act. The respondent concurred with that course of action.
19. The applicant said that he did not minimise the wounding with attempt to murder committed on 15 November 2002, took responsibility for it and was sorry for the suffering it had caused. It had taken time to come to grips with the offence – he felt unable to deal with it until he had overcome his alcoholism. His actions in jail had shown that his life had changed and that he was not in conflict with community expectations. He had undertaken several courses in prison and while that was no guarantee, those who had worked with him in those programs could attest to the progress he had made.
20. It was only after his body had been cleared after two years that he had been able to turn his life around. Previously, he had been a wreck, but counselling sessions he had undertaken with Ms Kaye Cooke at Grafton jail had helped enormously in recovering his health and sense of purpose. He had never been in jail before, although he had experienced a number of run-ins with the law because of his drunkenness. That had been a recurring problem in his relationships.
21. At one time he had thought he would never get well and wanted to die, but he had slowly improved. He worked in the Grafton nursery, which he was able to manage because of his prior experience. He was responsible for launching Grafton’s Green Initiative, and government funds had been obtained for it. He had started a vegetable garden, making fresh fruit and vegetables available to prisoners for the first time.
22. Previously he had joined Alcoholics Anonymous, but had been in and out of it because he could not “get it”. His conviction of his principal crime had changed him, and he had accepted the spiritual leadership of the prison chaplain. Gradually his life came together and he has had contact with his ex-partner and children. He had dealt with long-standing issues concerning separation from his father in childhood. He had an offer of work on release and his ex-wife had come back into his life. They were now in a relationship. He loved his work in jail, and was trusted to work outside the prison walls, with a C2 classification. He was ineligible for C3 because of being of immigration department interest, but otherwise would have earned it. Jail had been good for him, and had made him healthy.
23. He had tried to institute a restorative justice program with Ms Monthulé (the victim of the wounding with intent to murder). He could not prove that he had changed, but simply knew how he felt. He was now 56, and healthy in every way. He was sorry that Ms Monthulé and her family feel the way they do.
24. His plan is to remarry Bridget Allon, his ex-wife. Her father knows about their plans.
25. His own family is overseas. They are a typical black family. His first wife had been a woman of Italian descent, and his family could not accept that he had married a white woman. As a result he no longer had a place in the family and his place is here in Australia. He would have to earn the right to remain.
26. He had taken care of his alcoholism. He had never been violent except under the influence of alcohol and had never been in a fight.
27. In cross-examination, the applicant described his earlier life. He had two children with his first partner, Gloria, while he was at a community college affiliated with Cornell University when he had been working for her father at the Syracuse newspaper. Gloria was the mother of his two children Julian and Lovely. She had found another boyfriend and the relationship broke up.
28. While working at a hospital in Syracuse, he met his first wife, Linda Cavalero, who was of Italian extraction. Both families were opposed to their de facto relationship and marriage. After his brother told him that their father wanted to kill him for marrying a white woman, the applicant and Linda moved to California when he was 28. At that time he was drinking only socially.
29. Subsequently he met his second wife, Bridget Allon, who was Australian, and they lived in Canada and Seattle. He worked in an alcohol detoxification centre, but after they moved to Australia he found employment in construction. Bridget’s family was supportive of their relationship and helped them to become settled.
30. His drinking became a problem in 1990 when his extramarital affairs caused strains in his relationship with Bridget. He blamed his drinking for the relationship problems and his infidelities. Subsequently, she left him.
31. He thought he had probably been violent with Bridget, perhaps pushing her, and had verbally abused her.
32. In 1990 he met Katharina Rentschler, a Swiss-German from a wealthy family, and they soon began living together. Their first child, Omar, was born a year later and their second child, Natasha, was born in 1992.
33. It was about this time that he realised that he was an alcoholic. Their relationship continued but was rocky, as Katharina had no family here. At that time he was running his own waterproofing business and also worked for others. He ceased drinking but resumed later when Omar and Natasha were older. He entered Oolong House in Nowra in 1992 for two months of detoxification.
34. His memory of that period is foggy but he entered Oolong House in an attempt to save the family. The attempt failed, however, because to escape from alcoholism one has to do it for oneself, not for others. Nevertheless Katharina was supportive of his efforts.
35. Katharina was demanding and “wound up”. She wanted his entire pay cheque. She obtained an apprehended violence order (AVO) because he asked her about another boyfriend she had and said that she felt in fear of the applicant. She left him when he raised with her some unexplained absences.
36. Although he had joint custody of their children, he relinquished contact with them because he could see that the tensions were not good for them. Legal contests had developed and he lacked the funds to continue with them. She was wealthy and controlling and was interested in him only because she wanted black children. After she forged his signature on some documents giving consent to her taking the children overseas, the relationship ended altogether.
37. Asked about the passage in the report of the psychologist, Mr Yat Sang Cheung (Exhibit A4, para 15), in which he is reported as saying that he had been physically violent with Katharina which had led to her taking out the AVO, he said he could not recall saying it. There had been no physical violence; they had merely fought. He was dealt with for a breach of the AVO because he had spat in her direction.
38. He was still in touch with the two children, but not with Katharina. His son Julian in the United States has been facilitating his reconciliation with Omar. He has reconnected with all his children in the United States. Julian has found the applicant’s father and introduced them.
39. His relationship with Katharina was his major involvement. There had been two more relationships before Ms Monthulé, which ended when he met Ms Monthulé in about 1997 and moved in with her. At that stage he was not drinking, and had been working at a café. He subsequently worked at Ms Monthulé’s nursery for the next four years. He had been unaware that Ms Monthulé had previously been in a partnership with Ian McIntosh (Exhibit R2), but Ms Monthulé had ejected Mr McIntosh from the main part of the house on that day and he had moved into a shed on the property, which he adapted into a studio apartment. Mr McIntosh was a builder and had built the main residence on the land, of which he was joint owner with Ms Monthulé. (There appear to have been a number of different residences on the property which had not been the subject of planning permission.)
40. The applicant was asked about paras 6 to 10 of Mr McIntosh’s affidavit, in which he described the applicant's outbursts of abusive and threatening language towards Ms Monthulé, often in relation to his jealousy of other men. Mr McIntosh wrote that in his experience, alcoholism was not the only trigger for the applicant's aggressive, abusive and, at times, violent behaviour. He had seen the applicant aggressive and intimidating when he was not intoxicated. On one occasion he appeared to be preparing to threaten Mr McIntosh with a machete, whereupon Mr McIntosh retreated and called the police, who removed the applicant from the property.
41. The applicant’s comment was that Mr McIntosh had tried to stay on the property but it was not good for him. Ms Monthulé had the view that their relationship had ended, but he thought it had not. The applicant said he would not respond to the evidence in relation to the threatening behaviour involving the machete, but said there had been no confrontations between them.
42. During that period he did not drink on the premises but repaired to the beach as he was ashamed to be seen indulging. Ms Monthulé would come and find him and drag him back to the house. Sometimes he rented an apartment or a room elsewhere. He felt he was supporting her and the nursery business and was not being paid for it, although he paid no rent. He also had his own landscaping business at the time as well.
43. After the breakup with Ms Monthulé, he had wanted to get “clean” and had checked into The Buttery, a residential drug and alcohol rehabilitation centre at Bangalow.
44. In relation to the two convictions for assaulting police (G p69), he said that the police had been called to an argument at his house. He had been drunk and menacing towards them and had left the house, brushing past them in the process. There had been no other physical contact with the police. He could not recall why he had been drunk or whether he had been violent towards Katharina.
45. The applicant rejected Judge Ducker’s finding in his sentencing remarks (G p92) that the applicant had been in a rage of sexual jealousy at the time of the attempted murder. He had built up the nursery business on Ms Monthulé’s property, which had previously not been doing well, but was not being paid or rewarded in any way for his work. Profits had increased by 400 per cent.
46. At that time Ms Monthulé had another lover living on the property in Mr McIntosh’s shed while the latter was overseas.
47. The applicant had gone to Ms Monthulé’s property because he had been intoxicated the night before (G p99). An alcoholic can be affected by alcohol the whole time because of the high tolerance developed, even though the person may not have been drinking at the time.
48. Again referring to the sentencing remarks (G p87), he denied that he had been influenced by jealousy at the time but said he could not recall all that had happened. If anything, Ms Monthulé was jealous of him. At the time they were members of a movement known as the Orange People, founded by Bhagwan Shree Rajneesh (who died in jail in the United States in 1990 after conviction for attempted murder), which favoured free sexual relations. Mr McIntosh had wanted to share Ms Monthulé’s society with the applicant, but he had not been interested. He was not in general the jealous type himself, and the “sexual freedom all round” that prevailed in the Orange People group was not conducive to feelings of jealousy.
49. He did not know what Mr McIntosh was talking about when he described the applicant’s sexual outbursts. His anger was due to his not being rewarded for building up the nursery business. He said he had no response to paragraph 7 of Mr McIntosh’s affidavit or to Ms Monthulé’s affidavit in general (Exhibit R1), but thought they were fabrications. He felt he had no choice but to accept them as uncontested evidence.
50. He has a large family in the United States, including six siblings. He had been in contact with them recently after one of his sisters had died, but felt that he did not belong there. He did not believe they would support him if he returned to the United States as they lived in a black world and he did not. They would regard him as alien. His son Julian does not like whites in general. He felt the United States was a racist society, quite unlike the multicultural community portrayed on television, whereas Australia was not.
51. His son Julian works in finance in New Jersey and the applicant is in regular contact with him. Julian supports him to remain in Australia and to re-establish contact with his Australian family, but would not support him in the United States. He feels he is a white black man.
52. In the United States he has three children: Desirée, whose mother, Anna, he had known when he was 16, who is now 39; Lovely, aged 32, who lives at Syracuse; and Julian. He has two children in Australia. He also has 10 grandchildren in the United States.
53. He had previously not approached his children in Australia, but Julian had not wanted him to abandon them; he had wanted to break the intergenerational pattern of paternal desertion.
54. His son Omar is angry with him and wants to see proof that he is recovered. He communicates with Omar through Julian. He had been unable to make direct contact with the children because Katharina was opposed to it and screened any calls and letters from him. He was concerned that Katharina might become aware through the record of the current proceedings that he had been in contact with Omar and Natasha and added that if there was any chance that she would see the transcript, he would simply say that he had not had any contact with them.
55. His first direct contact with Natasha had been an email received via Julian yesterday (1 June).
56. The applicant said he had not lived in the United States since 1982 and did not like the country. In Seattle he had faced racial strife, especially from black women, because he had married a white woman. In Australia he did not live in a situation where people would look at him in fear. He had experienced only one minor racial slight in Australia and generally found that it was an advantage to be black here. His son had the same experience.
57. He had employment opportunities pending his release and wanted to gain more experience working in earthmoving with Bob Small. He planned to live in Pottsville and would work in the growth area near Tweed Heads, where there is great demand for horticultural services.
58. In relation to community expectations, he had faced what he had done and had rehabilitated himself and picked himself up. His history and his recovery from alcoholism showed that he would not repeat his mistakes. If he did, he would expect that his visa would be cancelled. He acknowledged, however, that some members of the community would expect that his visa should be cancelled now.
59. By way of re-examination, he said that he had indeed fought with Katharina. She was “full on”, “a handful” and had kicked and thrown things at him. She would not take no for an answer, but was a good mother.
60. He was no longer in the grip of alcoholism and owed much to Kaye Cooke from Grafton jail in that regard. She was the best.
Applicant's supporting witnesses
61. Mr Robert Small, in his statement dated 25 September 2008 (Exhibit A2), wrote that he had known the applicant since 2003 when he became involved in the Kairos program for inmates at Grafton Correctional Centre. His initial impression was that the applicant was much the same as most inmates, but his opinion changed as time passed and he told Mr Small a little of his past, employment history and the life he had led.
62. Mr Small realised that the applicant knew exactly where he wanted to go when paroled. He loves anything to do with gardening and if released that is where he would like to work. Eventually Mr Small approached him with an offer for him to stay at their house for a couple of months on his release and to help him find employment. Mr Small has a number of friends in the applicant's chosen field and has already laid the groundwork for when he moves to the Pottsville area. Mr Small is warden of his local church, a justice of the peace and an active participant in voluntary organisations in the Tweed Heads area.
63. At the hearing Mr Small said that the applicant had coped well at Grafton and had a plan for his life. He was a regular participant in bible study and wanted to become more spiritual.
64. Mr Small has an acquaintance who owns the biggest garden centre in the Tweed Heads area and who would consider the applicant for employment on his release. He also knows a turf farmer and other contacts who would be willing to interview the applicant for possible positions.
65. In cross-examination Mr Small said that he did not know about the applicant’s earlier offences but had discussed the attempted murder with him. The applicant had told him that he had attempted to strangle the victim at a time when he was intoxicated and had subsequently tried to kill himself.
66. Mr David Allon, father of the applicant’s ex-wife Bridget Allon, in his oral evidence adopted his statement of 21 April 2009 (Exhibit A3) in which he expressed confidence that the applicant has recovered, is reformed and is fully rehabilitated. He looks forward to a normal relationship with him in Australia.
67. Mr Allon’s daughter Bridget is confident that she will be a good support for him on his release in Australia, but if he is removed to the United States she would follow him. That would be unacceptable to Mr Allon because he is 82 years of age and his wife is permanently in a local nursing home. He feels they would probably never see Bridget again.
68. Bridget is very capable and supportive towards them. Her frequent visits and stays with him enable her mother to have some time out from the nursing home and be with them. Without Bridget’s help he would be unable to care for his wife on his own. Further, he fully believes that the applicant, with his work skills, would be a fine asset to the community.
69. In cross-examination Mr Allon said that he was aware the applicant had been divorced from his ex-wife because of violence and alcohol abuse.
70. Mr Allon has two other children, a son living in Sydney and a daughter about a half an hour’s drive from him. His daughter is a horse breeder and trainer and it is difficult for her to leave the horses overnight in order to stay with him.
71. If Bridget were to follow the applicant to the United States, as she had said she would, he could not manage to care for his wife at home. He would be distressed if Bridget left.
72. Father Ian Bailey, in his oral evidence by telephone adopted his statement of 9 April 2009 (Exhibit A5). He had been chaplain at Grafton Correctional Centre from 2002 until November 2008. He first met the applicant on his arrival to begin his sentence. At that time he was very upset and confused, not only by his new surroundings but also by how he had come to be in such a situation, not having behaved in ways that until then would have brought him into contact with the justice system.
73. The applicant realised that he would need help to deal with the causes of his wrongdoing and began to seek as much assistance as the system could provide. He worked with health professionals and other staff in his quest to understand himself and his motivations and had joined a self-development group that Father Bailey conducted each week. At no time did he seek to minimise his offence, and was indeed appalled by it. In recent times he had sought to be involved with the Restorative Justice Program, but the victim in the case had declined to take part.
74. At all times he found that the applicant backed up his positive words with his attitude and behaviour with other inmates and in his work and relationships with staff. He had also tried to be as supportive as possible to others.
75. His growth as a person had been evident in his family relationships, which had grown and deepened.
76. At the hearing Father Bailey agreed that the applicant had worked with Kaye Cooke, who had helped by pointing out the issues he had been unaware of and how they impacted on his conduct. He went through the Kairos program, was open about his problems and was dynamic and trusting.
77. It was not easy for inmates to enter the Restorative Justice Program because they had to face what they had done. It is a harrowing process, especially for the victim. Father Bailey had sponsored the applicant for the program and he had contacted Ms Monthulé, but she had declined to take part.
78. Asked by Mr Orford about his statement that the applicant’s prior conduct had not “brought him into contact with the justice system”, Father Bailey acknowledged that he did not know anything about the applicant’s prior criminal history. He believed the attempted murder had resulted from stresses in relationships with women and men. He found himself in co-dependent relationships and dealt with them with alcohol, which had exacerbated the problem, and then had repeated the same pattern in other relationships. The relationship he was in was an underlying factor in the offence, but it was a repeat of prior experiences.
79. The applicant had described the offence to Father Bailey, saying that he had struck the victim with an iron bar but could not recall a great deal about it. It was, however, brutal.
80. The applicant had not been dealing with his problems because as a child he had been exposed to few adult male role models. He had been surrounded by women and had tended to attract women with problems of their own.
81. The applicant’s ex-wife, Ms Bridget Allon, gave evidence in person at the hearing. She adopted her written statement (Exhibit A6), which described how she had met the applicant in 1985 in the United States, their marriage, life together in Vancouver, Seattle and Bondi, and separation in 1989. They were divorced in 1990 but remained friends and would meet in Sydney, and later when they had both moved to the Byron Bay area. She was shocked by the principal offence but continued to support and help him, regarding him as “family”.
82. After he was sent to Grafton she visited him whenever she went to Forster to visit her parents and sister. He telephoned her often, and after a longer visit she realised she was attracted to him once again as he now seemed to be an emotionally healthy man. He had faced his alcohol problem and childhood issues, and although drugs and alcohol were available in jail, he was not interested in them. Her visits and their contacts became more frequent and over the next few years, she came to the conclusion that he had effectively been reborn. They wanted to have a future together and the applicant wanted to establish himself so that he could contribute to the relationship. He has employment prospects and is ready to participate in life, in work, in creating a home, in reconnecting with friends and in continuing with counselling.
83. She understood the government’s need to assess non-citizens who had committed crimes but felt no doubt that he is rehabilitated and indeed transformed and has much to offer the community. They speak of remarrying and building a life for themselves. They want to be there for her aging parents, who need her assistance so that her mother can spend time at home, away from the nursing home where she is now accommodated. She has bought a used car from a friend to free up her former car so that the applicant would have transport. At Bob and Dianne Small’s house he would have a loving and stable environment. While at Grafton he has undergone profound changes. She is proud of how he has responded to the situation and is confident in his ability to handle life’s challenges from a place of inner strength.
84. In cross-examination Ms Allon said they had divorced because of his infidelities and occasional alcohol abuse, which had emerged when they had first moved to Seattle. He had tried counselling, and she had supported him in it, but it had not succeeded.
85. While under the influence of alcohol he was sometimes overbearing and intimidating, but not violent.
86. If released into the community he would live with Bob Small at Pottsville because they wanted to negotiate their courtship in a healthy way. As his parole conditions prohibit him from entering the Byron shire where she lives, she would look for accommodation in some area where his parole permitted it. For her it is only 20 minutes’ drive to Pottsville.
87. She had not seen Ms Monthulé for a couple of years because she had refused contact.
88. Ms Allon’s sister lives 20 minutes away from their parents and does help them as far as she can. Her brother lives in Sydney. He has a heavy workload but comes to see them for occasional weekends. Her sister sees their parents every weekend, but as Ms Allon lives about six or seven hours’ drive away, she is able to go to see them only every couple of months. If the applicant were removed to the United States, it would create a conflict for her because her parents are now older, while her future is with the applicant. The situation that presented itself would dictate the result, but she assumed she would eventually go to join him. She had not, however, wanted to consider that prospect.
89. Her parents would still be able to obtain support from her siblings, but it would be different because their mother benefits from coming home to stay, while her sister’s commitments with the horse property prevent her from remaining with their parents for 24 hours. Ms Allon is able to stay for five or six days at a time, sometimes less.
90. She knew the details of the attempted murder and was shocked and distressed by it, but for her it was as if it was a crime committed by her own child. She loves him and needs to be there for him. She has resumed wearing their wedding ring. She believes they could make a good team and create a great life.
91. Mr Wrothwell Wall, solicitor of Mullumbimby, in his oral evidence by telephone adopted his statement of 19 May 2009 (Exhibit A7) stating that he had known Bridget Allon for 30 years and that he and his wife had enjoyed a closer personal relationship over the past eight years.
92. He knew Bridget had been married to the applicant and that they had lived together until about 1990. After their separation, however, they maintained their close personal friendship. The visits became more frequent and as the relationship developed they decided to have a life together again.
93. Mr Wall regards Ms Allon as a very stable person and trusts her sense of judgment in relation to re-establishing the relationship with the applicant. He was aware of the applicant’s conviction for attempted murder and believed it had been kindled both by excessive alcohol use and a dysfunctional relationship. He believes neither of those factors now exists and he has responded to extensive therapy and counselling. He sees no prospects of the relationship degenerating into violence, physical or otherwise.
94. In cross-examination Mr Wall said he believed Ms Allon would move to the United States to be with the applicant. He does not personally know the applicant, but his opinions are based on information he has received over a long period. Another client of Mr Wall’s had been with the applicant in jail and corroborated the progress he had made. He spoke highly of the applicant and had said he was kind and supportive towards him.
95. Mr William Upton, a retired senior executive public servant who has been involved in the Kairos prison ministry at Grafton, adopted his statement of 26 March 2008 (G p110) in which he stated that he had known the applicant for about five years and had been in regular contact with him. He had seen the applicant undergo important changes over that time. The applicant had a genuine desire to make the right choices about the future and had become a role model to other inmates who shared similar objectives. He has a high level of communication skills and was respected by both inmates and staff.
96. He is committed to a normal life in the community. His work ethic and his compassionate approach in helping others would add to social and economic frameworks. He is a likeable and mature person and with continuing self-motivation would be an increasingly valuable community asset.
97. At the hearing Mr Upton said he was aware of the applicant’s offences in very broad terms but it was not his practice to go into details with inmates about their offences so as to avoid making judgments about them.
98. Before the hearing the applicant lodged with the tribunal a number of other letters of support. Although they were not tendered or referred to at the hearing, I have taken them into account. They include references from the following:
(a)Dr Mark Allon, brother of Bridget Allon;
(b)Richard and Nichola Paff;
(c)Alison McLaren (statutory declaration), close friend of Bridget Allon; and
(d)Father Paul Pidcock, chaplain at Grafton Correction Centre.
99. There are also some letters in the G documents in addition to those already referred to. They include letters from the following:
(a)Sharne Warren, who has known the applicant for over 11 years (G p112);
(b)Ella (Pamela) Winkless, teacher-librarian, friend of the applicant for 18 years (G p113);
(c)Lynley George, who has known the applicant for some 16 or 17 years (G p114).
100. They do not indicate any awareness of the nature of the wounding with intent to murder offence, although in the case of the prison chaplain that may be presumed. Other letters describe Bridget Allon’s commitment to the applicant and the genuineness of their relationship.
101. The applicant also supplied copies of his parole reporting arrangements, parole conditions, sponsorship form for the Restorative Justice Program, a letter to Katharina Rentschler dated 28 July 2005 seeking to re-establish his relationship with the children and a letter from Ian Minnis, director of Prison Fellowship Australia explaining that Omar and Natasha’s mother declined permission for the applicant to send a Christmas gift to them.
102. Also supplied were copies of AAT summonses to give evidence addressed to Mr Wayne Ringland and Ms Kaye Cooke, prison officers at Grafton Correctional Centre. As he was in custody, he was unable to obtain written statements from them and s 500(6H) of the Act precluded their giving oral evidence without such statements.
Psychologist’s report
103. The applicant tendered a report by Mr Yat Sang Cheung, an intern psychologist provisionally registered with the New South Wales Board of Psychologists. It was prepared under the supervision of Dr CJ Lennings, forensic and clinical psychologist, on the basis of an interview at Villawood on 30 April 2009 lasting approximately three and a half hours, including breaks.
104. The report outlines the applicant’s background and childhood, commenting that the distance he experienced in family relationships might have affected his attachment style, making him vulnerable to any perceived abandonment, which proved to cause him significant difficulties in his later years (para 7). His educational background included a bachelor’s degree in psychology. He had a stable work history and the report also outlined his extensive relationship history, which reportedly included violence towards Katharina that had resulted in the AVO. He has no history of drug abuse or gambling, but alcohol is a significant issue. His detoxification efforts at Oolong House and The Buttery had not been self-motivated endeavours to overcome the problem, but rather attempts to please his partners. For that reason they produced no long-term benefits.
105. In relation to the applicant’s attitude to the offence, Mr Cheung had this to say:
…
30.Attitude to the offence: Mr Heyward says he should not have done what he had done to the victim. At that time he thought the victim was being unfaithful but now he thinks this is no excuse, because he could have walked away from the relationship anytime he wanted. However he chose to stay in the relationship and became possessive. With the benefits of hindsight, Mr Heyward can see how irrational his thinking was when he committed the offence. It is likely that alcohol was a significant contributor to his lack of insight into his behaviour. Mr Heyward seems to express genuine remorse and he tells me that he is ashamed of what he did and feels sorry for the harm caused to the victim.
…
106. Mr Cheung’s report then describes the substantial changes the applicant has brought about during his incarceration:
… He tells me that from his prison term he has changed and learnt a lot. Now he thinks that a person should not become possessive but instead should live an independent life without becoming demanding of others. He appreciates that it has been unhealthy for him to rely solely on others for happiness as in his previous relationships. …
(para 31)
107. Mr Cheung comments that his recent offence, and his previous offences:
… seem to have emerged in a context where he lacks adequate skills in managing relationship problems. … These problems combined with his lack of skills were further complicated, and perpetuated, by his problematic alcohol use. Therefore Mr Heyward’s offences can best be understood in the context of ineffective problem-solving and inappropriate coping responses associated with relationship difficulties whilst affected by alcohol. The severe nature of the violence appears uncharacteristic of his general behaviour and does not represent a characteristic pattern of antisocial behaviour.
(para 33)
108. He intends to strengthen his skills in controlling alcohol use:
… This is important as Mr Heyward would no doubt encounter new stressors in the community and professional support can act both as a monitor of his functioning as well as a resource for him to draw upon in his attempt to stay sober.
(para 34)
109. There did not appear to be any inherent personality disorder.
110. The report concludes that the applicant is in the low-moderate risk category. Although the seriousness of his last offence excludes him from the “low risk” category, he had expressed appropriate remorse and satisfactory insight into his offending and alcohol abuse. A forced return to the United States would disrupt, if not destroy, his relationships with Bridget and his son Omar, and could cause psychological harm to all the parties involved. Those relationships are also protective factors for him in regard to his re-offending risk.
111. In his oral telephone evidence, Mr Cheung reiterated that the applicant needed counselling because the risk of alcohol relapse was greatest when he was in the community. Cognitive behaviour therapy might be more effective than Alcoholics Anonymous, which has been less closely studied.
112. He used alcohol to deal with relationship difficulties because of his childhood experiences. He could be jealous and had said that he was formerly very demanding of others, but now sees that as inappropriate. It is possible that he had used violence in an attempt to reattach to his partner.
113. In relation to paragraph 30 of the report, Mr Cheung agreed that alcohol alone could not have been a sufficient motive for the crime. He had said he had been ruminating on an argument with the victim the day before. The issue could have been a combination of his contribution to the nursery being unappreciated, and jealousy. His deficient skills in dealing with relationship problems and his jealousy could have led him to misinterpret a partner’s behaviour. If he remained sober but did not deal with his relationship issues, problems could emerge in the future. Mr Cheung agreed that when stating that the violence was uncharacteristic of his general behaviour, he should have qualified it by reference to the applicant’s previous pattern of conduct towards the victim. But inherently antisocial beliefs would normally be associated with consistent rule-breaking from an early age.
114. In relation to paragraph 15 of the report, Mr Cheung confirmed that the applicant had said he had been physically violent towards Katharina Rentschler.
115. It would be possible for the applicant to manipulate his answers to the Personality Assessment Inventory test, but the test contains validity scales designed to prevent such attempts.
116. Asked about paragraph 34, Mr Cheung said the stressors he was referring to were such things as financial, work, accommodation, social support and relationship problems. Without support on the alcohol problem, the risk of relapse would increase, as would the risk of re-offending.
117. As regards the recidivism risk, the applicant could not be in the low category because of the seriousness of his last offence and because of his prior alcohol abuse history, although he has been abstaining. He could not be in the low range also because of the degree of possible harm if he re-offends. If he were to relapse into alcohol abuse, the recidivism risk would be higher, possibly being in the medium range.
118. His relationship with his son Omar would have a protective value by helping to strengthen his motivation. It could still have that effect if he were in the United States, but it would not be as strong because if one cannot see a person and have physical interaction, the motivation may tend to fail, although if Omar could visit him in the United States that would help to an extent.
119. His relationship with Bridget would also be protective, but if issues came to the fore and the relationship became volatile, it would not be. He had not interviewed Bridget or Omar and could therefore only make general observations about them.
120. In re-examination Mr Cheung agreed that the relationships with Omar and Natasha could both help to increase his motivation and reduce the risk of relapse. He agreed that some defensive responding (para 36) was not uncommon and he could not say whether it was conscious or not. He also agreed that relationships involving more than two people were harder to manage and that alcohol abuse would tend to impair these skills.
121. Working with his children could reduce the generational pattern of abandonment behaviour, depending on the quality of the relationship, as they would not be growing up without a significant parent figure.
Ms Nadia Monthulé’s evidence for the respondent
122. Ms Monthulé in her affidavit of 22 May 2009 (Exhibit R1) deposed that after meeting the applicant at Byron Bay in September 1998, she was in an intermittent relationship with him until October 2002. Towards the end it was more “off” than “on”. During that relationship she came to learn his history of alcoholism, which goes back to his teens, and his trend of abusing women with whom he formed relationships.
123. During the four years of their association, he entered rehabilitation centres three times, only to relapse into alcoholic binges and aggressive, abusive, and at times violent behaviour towards her. In 2002, his sponsor from Alcoholics Anonymous (AA) told her that he and the other participants had given up on him and regarded him as a lost cause.
124. Although his behaviour towards her was at its height during periods of binge drinking, she could testify to his inherently abusive and violent nature, independently of alcohol abuse. During their relationship she rarely saw the applicant inebriated because he would always disappear when on a binge. But during his periods of sobriety he was often aggressive, abusive and at times violent towards her. For example, in about the winter of 1999, he held her by the throat and threatened to throw her over the handrail from the upper floor of her house. On another occasion at about the same time, he threw a fist-sized stone at her while she was standing in the courtyard of her house. The stone just missed her head.
125. Several times she experienced aggressive and violent behaviour from him when intoxicated. In about April 2000 while she was driving with the applicant in her car when he had been drinking, he became verbally abusive, which frightened her. In response she told him she was taking him home and proceeded to drive towards his house. While she was driving he pulled the handbrake on, stopped the car and immediately grabbed her by the throat. He proceeded to detail how he was going to kill her. He used words to the effect of “I’m going to break every bone in your body. I’m going to disfigure you so you won’t be pretty anymore”.
126. She believes the applicant is very skilled at manipulating people and hiding his alcoholism from others. During their relationship it surprised her that so few people were aware of his “dark side”. From her experience he has an extremely jealous and obsessive personality. He was regularly suspicious of her day-to-day interactions with other men. This deluded sexual jealousy led him to threatening to kill her and “her lover” on a number of occasions. On each occasion she was not in an intermittent relationship with anyone other than the applicant and could not be sure even who he was referring to.
127. She believes that because of his extremely jealous and obsessive character, he used abusive behaviour to control her. For periods of their relationship, out of fear of his abusive behaviour, she allowed him to control her. She tried to break up with him several times but that would lead to him calling continually, appearing at her house unexpectedly, stalking her and becoming aggressive, abusive and at times violent. Once in about late 1999, soon after she had broken up with him, he made threats over the telephone to burn her house down. From fear of such behaviour continuing and of the applicant executing his threats, she repeatedly gave in and allowed the relationship to resume.
128. In October 2002 she finally stopped yielding to fear and ended the relationship. She believes that in the month following the final break-up, the applicant realised he had lost all power over her and became increasingly jealous of her interactions with other people.
129. Ms Monthulé then outlined the applicant’s offences of 15 November 2002. Her account in the affidavit in effect summarises her evidence at the sentencing proceedings, which was accepted by Ducker DCJ (G pp87-89 and is reproduced below at para 249). The assault ended when he smashed her mobile telephone, stole money from the cash register in the nursery and drove away in her car, leaving her semi‑conscious and losing a large amount of blood. She believes she would have died but for the prompt assistance given by Mr McIntosh, who heard her calls for help as she made her way back towards the house. She was taken by rescue helicopter to Lismore Base Hospital.
130. The applicant’s offences have left her with severe physical injuries, including deep scarring on her forehead and scalp, broken teeth, high blood pressure, dizzy spells and post-traumatic stress. She has required ongoing medical treatment and therapy.
131. Since the attack she does not feel safe and will not feel safe if the applicant can live in Australia. She finds it very difficult to trust men and to feel positive about establishing a healthy relationship again. Her family, especially her youngest son Olivier, has been traumatised by the abusive aspects of the relationship and by the attack.
132. The offences have also affected her livelihood. Because of her physical and psychological injuries, she was forced to close the nursery that she had been operating on her property for over six years. Her capacity to work is greatly reduced and she cannot contemplate taking on employment as she is sometimes overwhelmed by anxiety and depression. She has worked hard at overcoming the impact of this trauma but it continues to have an effect on her livelihood. She remains unemployed.
133. Her ex-de facto, Ian McIntosh, and her sons Olivier Monthulé-McIntosh and Sid Monthulé were present at her Byron Bay property numerous times when the applicant became abusive and violent towards her, and at times towards them. At the time of the attack, Olivier was 15 and lived with her at the property, while Mr McIntosh lived in a different house on the same property. Witnessing her injuries after the attack was very traumatic for a 15-year-old boy. Her eldest son Nik Monthulé and her wider family have also been impacted, as appears from their separate statements.
134. From her interactions with close friends and the broader community, she believes they all expect to be protected from the applicant and that the decision to cancel his visa should be affirmed. The documents she attached in support of that statement will be referred to later.
135. Ms Monthulé does not believe that six and a half years in the controlled environment of prison without consuming alcohol is a guarantee of rehabilitation or a true indication of an alcoholic’s sobriety.
136. In her view his incarceration denied him the two triggers of his violent behaviour: alcohol and his unstable relationships with women. His rehabilitation could not be established until he is living freely and forced to deal with those triggers on a day-to-day basis. She believes any risk of his failing to manage those triggers is too high.
137. For six and a half years she has struggled with a sense of insecurity from living in the community in which she was so viciously attacked. She has made progress in that regard but longs to feel safe in her own community. If the applicant can return, she would never feel safe. Her family and friends would never feel safe. She would be denied the security and closure she so desperately needs for her own wellbeing. She expects to be protected by the law.
Annexures to Ms Monthulé’s affidavit
138. There are 21 annexures to Ms Monthulé’s affidavit, starting with a letter from her dentist, Mr Michael Leach, who confirmed that she suffered broken teeth requiring porcelain crowns and also presented with severe facial injuries. Later on the psychological trauma that she had suffered became more apparent and was of no less importance.
139. Mr Leach went on to say that he would be greatly disturbed if the applicant were allowed to remain in Australia. For the victim it would be an ongoing cause of distress.
140. Dr James Nicholson of Byron Bay has been the applicant’s doctor for 10 years. The injuries she suffered in the assault had an enormous impact on her health and she has not yet fully recovered. She suffers from high blood pressure and dizziness, which required regular medication for a period of time, and post‑traumatic stress disorder. Her head injuries could have been fatal. He believes the Australian community deserves to be protected by the revocation of the applicant’s visa, which is the only way Ms Monthulé would achieve closure of this very traumatic episode.
141. Mr Peter Wucherer, of Mullumbimby, has provided professional assistance for Ms Monthulé as a remedial therapist since the attack. He has known her for 26 years and can attest to the long-term trauma she has suffered and is still suffering from this brutal attempt to kill her. She is fearful for her safety if the applicant is released into the Australian community, especially considering his history of alcoholism and violence towards women.
142. Ms Monthulé’s naturopath, Mr BW Hopley, wrote that the victim required regular attention for her physical recovery, particularly for her nervous system. Some symptoms still persist, including sleep disturbance with anxiety and a sensation of blackout. The long-term repercussions persist in relation to her safety, and that entails a level of overt stress that she has to live with.
143. Mr Sid Monthulé expressed great concern for his mother’s safety and for the community at large. He strongly believes the applicant’s claim of rehabilitation is extremely dubious as he has had no access to alcohol in jail. His claim that his violent behaviour was a direct result of alcohol abuse has no substance in his view, as he and his family members had experienced threatening and abusive behaviour from the applicant while he was not affected by alcohol on a number of occasions. He personally witnessed the applicant becoming so threatening as to make it necessary to have the police called to remove him from their property. In that instance, and during an argument with his mother, he tore his shirt off in a state of raw anger, challenging Ms Monthulé to fight him physically. At that point Mr Monthulé had interceded and managed to remove his mother from the situation. When his father requested the applicant to leave the property, the applicant brandished a sharpened machete to remove him.
144. On another occasion Mr Monthulé saw the applicant advance very threateningly towards Ms Monthulé as she attempted to escape to her vehicle. On seeing that, Mr Monthulé stepped outside, and on noticing him, the applicant retreated and cowered back to the house. He believes the applicant never directly threatened or attacked him because of his many years of martial arts training, of which the applicant was aware. He believes that had he not been there in that instance, the applicant would have attacked Ms Monthulé physically. This was about two months before the final attack and attempted murder.
145. During the years that he knew the applicant, he showed himself to have a split personality. One side was a softly spoken, charming individual whose history consisted of crafted lies and fabrications, presenting himself through a façade of false personal feats and past achievements. The other side was a deeply repressed, self-deluded and manipulative individual with a history of violence and abuse towards women, manifesting itself in sporadic and extremely volatile bouts of violence and abusive behaviour, ending in the attempted murder of Mr Monthulé’s mother.
146. He does not believe that the prison sentence is any assurance of rehabilitation and thinks his unstable nature will always be dangerous and that it is likely that he will re-offend and relapse into alcohol abuse on returning to society.
147. Mr Nik Monthulé, of Evatt, Australian Capital Territory, considers that the risk of recidivism is extremely high because of the applicant's history of alcohol addiction and violence towards women and that his release into the Australian community would endanger the safety of his mother, his family and the public. His mother had gone through immeasurable physical and emotional trauma and allowing the applicant to stay in Australia would not only put her in danger but would dramatically decrease her ongoing ability to deal with and move through the post-traumatic stress and anxiety she experiences.
148. During the applicant’s 15 years in Australia before he was imprisoned, he worked very little, paid minimal taxes and generally did not contribute positively to the community. He strongly believes the decision under review should be upheld.
149. Ms Sarah Balduchelli, of Evatt, Australian Capital Territory, wrote to support her mother-in-law, Ms Monthulé, in her plea for the applicant’s deportation. Ms Balduchelli is very close to her and knows at first hand the damage that the attempt on her life did to her, her sons, family and friends. They all still struggle to come to terms with the violence to which she was subjected. They need to feel safe from the threat that he represents. He is a violent man with a history of addiction and abusive behaviour who could relapse and re-offend. The risk that Ms Monthulé or her family would be the target is very high.
150. Ms Tessa Coles, who has been in a six-year relationship with Olivier Monthulé-McIntosh, attests to the irreparable damage brought upon his family by the actions of the applicant. During the time in which the applicant was being sentenced, she was privy to the many personal accounts from friends and family members about his true nature. They included many recollections based on events leading up to the attack. She understands that the applicant will claim sobriety as the key reason to have the decision under review set aside, but as she was constantly made aware, his violence was not born solely of alcoholism.
151. Rather, he presented as a very aggressive person in situations where alcohol was not involved. This underlines his inherently dangerous personality, which would be an extreme threat to the Australian community should he be released here. The likelihood of his re-offending is extremely high. Any claims of rehabilitation that he may make are false. He is not only a manipulative man who is adept at distorting reality but he is a dangerous man who poses a clear and direct threat to the Australian public. Ms Coles strongly supports the decision under review.
152. Mr Neil McIntosh, of Suffolk Park, brother of Ian McIntosh, also believes that should the applicant be released back into Australian society, the family’s peace of mind and security would be in jeopardy. The applicant is a danger to society.
153. Ms Vivienne McIntosh, of Laguna Beach, California, Ms Monthulé’s ex sister-in-law, wrote that she was extremely disturbed to think that her family might have to live in fear that the applicant could have the opportunity to repeat the atrocious crimes he committed against them. The applicant destroyed Nadia Monthulé’s quality of life both physically and emotionally and caused her family extreme anguish. The applicant has a record of alcohol abuse, but using alcohol as an excuse for such a heinous crime is not acceptable. Rehabilitation in an environment where you cannot have alcohol does not give confidence to the victims that he will not repeat once he is able to access alcohol again.
154. Ms Jasmine McIntosh of Fernleigh, New South Wales, believes the decision under review should be affirmed for the safety and welfare of Nadia Monthulé, her family and friends and the general Australian community. There is a high chance of the applicant re-offending because of his history of alcohol addiction and violence towards women. He has not contributed positively to the community and the crime he committed has been a substantial cost to the taxpaying community. Nothing in his character outweighs the negative impact he has had on many people’s lives or gives him the right to live in Australia.
155. Mr Jamie Wolter, also of Fernleigh, New South Wales, wrote in similar vein.
156. Mr Sean Tonnet is an accredited psychotherapist working as a family relationship counsellor with the Lismore Interrelate Family Centre. Until 2000 he was a senior New South Wales police detective based in Sydney. He was a close friend of the victim and was living at her residence on the day of the attempted murder. He is concerned that there is a real and high risk of the applicant re-offending, especially through returning to addictive behaviours and falling back into patterns of abusive relationships. In considering this risk holistically, and not only the direct consequences of violent or criminal activity, Mr Tonnet believes the tribunal should take account of protecting the community not only in physical wellbeing, but in the context of emotional, economic and social welfare. The drain on social, community and government organisations that would be required to support the applicant was to be considered. Even before his release, the impact of this matter had affected many in his circle negatively and caused considerable retriggering of health and wellbeing factors, including post-traumatic stress. Mr Tonnet and others had needed to seek ongoing support for those conditions.
157. Professionally, and in considering the risk involved, Mr Tonnet believes that one factor far outweighs the real or perceived rehabilitation that the applicant has undergone in jail: What capacity has he built to understand, negotiate and act upon the fixed emotional and psychological triggers that cause him to act addictively, abusively and eventually with extreme violence? Any risk of that should not be accepted. In considering the impact this case has had on himself and others, and knowing the applicant's psychological history, he has heard nothing to alleviate those fears. His concern is exacerbated by considering how the applicant would face the environmental stressors to which he would be exposed after incarceration.
158. Ms Shirley Hughes of McLeods Shoot, near Bangalow, in her letter of 5 May 2009, states that she is a close friend and confidante of Ms Monthulé.
159. Before the attack Ms Monthulé had been a friendly, confident and outgoing person who enjoyed social contact and warm and loving relationships with her family and friends. The attack, however, was a trauma that had consequential effects that had hugely impacted on her sense of self, her sense of physical and emotional wellbeing, and had understandably left her with diminished confidence and trust in her fellow man. It is difficult for her to maintain her spontaneity and the natural trust that she previously experienced with new people in her life.
160. She has struggled to deal with her decreased sense of security and has fought hard to regain and maintain the equilibrium she enjoyed before the trauma. The violent attack has also caused pain and anxiety to her family, as her sons have shared in the effects of it and have been deeply concerned about its impact on their mother’s health and wellbeing.
161. As a qualified psychotherapist, Ms Hughes is aware of the damaging residual effects of the attempted murder on Ms Monthulé and her consequent need for closure and a return to a restorative sense of safety in her daily life. As a resident of Byron Bay, she is also concerned for the safety and security of the community at large and strongly resists any possible threat to it. She emphatically supports cancellation of the applicant's visa.
162. Ms Jade Pattrick has observed similar changes in Ms Monthulé’s physical and psychological health. She herself would not feel safe if the applicant were released into the Australian community: “he is an addict and a violent man and always will be, no matter how long he spent in jail”. Ms Monthulé’s friends and the community are at risk and need to be protected because the chances that the applicant would re‑offend were very high. It is easy to stay clean in jail when there is no substance around, but it would be another matter when he is released. Ms Pattrick also supports cancellation of the visa and believes it will give Ms Monthulé and her children closure and justice.
163. Ms Kirstie Harmon wrote that she is a good friend of Ms Monthulé. After outlining the background to the applicant’s guilty plea, Ms Harmon notes that the applicant has an ex-wife and two children living in Australia. She believes the ex‑wife also had physical violence matters dealt with by the police in the court system. The ex-wife attended the sentencing hearing to support Ms Monthulé even though they had never met before.
164. Ms Monthulé has struggled over the years since the attack to reconcile her life with the applicant’s violent act against her. The trauma and stress she experiences on an ongoing basis directly relate to how safe she feels. If the applicant were released on parole, she would no longer know his whereabouts, information that previously has assisted her to make informed choices about her life.
165. She knew the applicant before he attacked Ms Monthulé and attended the sentencing hearing to support Ms Monthulé. She heard the police statements and hospital evidence and was the person who helped sort through the victim photographs. She is still traumatised that someone she knew could have inflicted such horrors on another person.
166. Ms Harmon strongly supports cancelling the applicant’s visa. She believes he is a very convincing and compelling person who will present his case with intelligence and charm. That façade would not, however, reveal that he is capable of extreme premeditated violence. She believes there is a strong possibility that he will re-offend, whether against Ms Monthulé or another person. He knows where Ms Monthulé lives and knows her family and friends. He knows her life. Ms Harmon considers that the case should be treated as a matter of public safety.
167. Ms Pamela J Saunderson-McLeay of Scone, a close friend of the Monthulé/McIntosh family, strongly objects to the applicant being allowed to remain in Australia. She states that he has a previous record of alcohol abuse and violence towards women and would be at great risk of re-offending. His release into the community would endanger Ms Monthulé, her family and the community at large.
168. Similar views are also expressed in a letter dated 15 April 2009 from Mr Jayen Perkal, a shop owner of Mullumbimby, and Ms Renee Engl, of Coopers Shoot, and by Mrs R Bourke of Broken Head, in her letter of 4 April 2009.
169. Ms Monthulé’s affidavit also attaches a petition bearing the names, addresses and signatures of 151 people living in the Byron Bay-Mullumbimby area, the Sydney region and the Australian Capital Territory. The petition supports cancellation of the applicant’s visa and concludes that he “represents a threat to the safety of the Australian community as a potential re-offender, having been convicted of attempted murder and having a history of addiction and violent behaviour towards women”.
Affidavit of Ian McIntosh
170. Mr Ian McIntosh, town planner of Broken Head, deposed in his affidavit of 23 May 2009 (Exhibit R2) that he had been in a de facto relationship with Ms Monthulé between 1982 and 1998. They have a 21-year-old son, Olivier Monthulé-McIntosh. Mr McIntosh and Ms Monthulé jointly own a property outside Byron Bay and have both lived on it continuously since 1985.
171. Mr McIntosh first met the applicant at the family property at Broken Head in October 1998. He lived or stayed on the property from time to time between late 1998 and September 2002. Ms Monthulé, the applicant, Olivier, Ms Monthulé’s son Sid and Mr McIntosh lived together in the house on the property.
172. During the periods when they lived together in the house, the applicant was regularly verbally abusive towards Ms Monthulé. He would often yell and speak in a threatening way towards her, often in relation to his jealousy of other men. On one occasion he yelled words to the effect of “you’re mine and no-one else’s”.
173. These conflicts created an extremely volatile environment, which Mr McIntosh found stressful. In early 1999, he moved out of the house and into the shed on the property, which has been adapted as a second residence.
174. During the periods when the applicant lived on the property, Mr McIntosh became aware that he had a serious problem with alcohol. He was admitted to several rehabilitation centres. For example, in late 2001 he checked into The Buttery, a residential drug and alcohol rehabilitation centre in Bangalow.
175. From McIntosh’s experience, alcoholism was not the only trigger for the applicant’s aggressive, abusive and, at times, violent behaviour. He has experienced aggressive and intimidating behaviour from the applicant at times when he was not intoxicated.
176. For example, some time in late 1999, the applicant had returned uninvited to their property after one of their separations. Ms Monthulé came to Mr McIntosh saying words to the effect of “Julian is in the studio. He is being very aggressive and won’t leave. I don’t know what to do”.
177. Mr McIntosh went to confront him in the studio and as he approached observed him unpacking his belongings. Mr McIntosh said words to the effect of “Pack your belongings, I’m calling you a cab to take you to town”. The applicant replied to the effect of “I’m not going anywhere, this is my place. You can’t make me leave. Come and try”. He then blocked the doorway and took an aggressive, ready to pounce stance and Mr McIntosh observed that the applicant’s right hand was hovering over a machete handle, which was protruding from a stack of clothes that it appeared he had just unpacked. Mr McIntosh then retreated and called the police, who attended and removed the applicant from the property.
178. On the day of the wounding with intent to murder, Mr McIntosh heard faint cries for help coming from the house and saw a trail of blood on the pavers leading to it. He entered the house and saw Ms Monthulé in front of him in the hallway with her back towards him. She was standing at the time but as he approached her she collapsed and he caught her as she lost consciousness.
179. Mr McIntosh laid her on the floor and was shocked by the state of her head. It appeared that she had been badly beaten across the head and there were three large openings through which he could see her skull. She was in and out of consciousness. As his first thought was that the applicant had attacked her, he asked her “Where is he?” Ms Monthulé’s mumbled reply was to the effect of “he’s gone, he took my car”.
180. Mr McIntosh called an ambulance and while the paramedics were attending to Ms Monthulé they called for a rescue helicopter. She was flown to Lismore Base Hospital.
181. Dealing with the applicant’s threatening behaviour during his relationship with Ms Monthulé and witnessing the consequences of the applicant’s violence were very traumatic experiences for Mr McIntosh. Ms Monthulé’s injuries were so bad that the face he knew so well was almost unrecognisable.
182. Those experiences had left him with a great fear of the applicant causing further harm to his family or others should he be released into the community. To this day he still has nightmares involving the applicant.
183. Having witnessed the extremely serious consequences of the applicant’s violence, he strongly believes that any risk that the applicant may re-offend is a risk that the family, the community and especially women should not have to take. He expects to be protected by the law and urges that the decision to cancel the applicant’s visa be affirmed.
Affidavit of Olivier Monthulé-McIntosh
184. Mr Olivier Monthulé-McIntosh, student, of Alexandria, in his affidavit sworn on 25 May 2009 (Exhibit R3) deposed that between 1998 and October 2002 the applicant was in an on-again, off-again relationship with his mother, Ms Nadia Monthulé. At times he lived with them on their rural property outside Byron Bay. During those periods of cohabitation, Mr Monthulé-McIntosh experienced the applicant’s various moods and traits at first hand. He found the applicant to be conniving, selfish, untrustworthy, mentally abusive and capable of becoming violent without warning.
185. He recalls that during their relationship the applicant and his mother would regularly have fights during which the applicant would be extremely aggressive in his tone and language. His mother always attempted to shelter him from those fights, but the applicant would often start fights when he was within earshot. He believes the applicant did this deliberately as a way of exercising control over his mother, as she would give in to him to smooth the situation over as quickly as possible while her son was within earshot.
186. During the relationship his mother often appeared very frightened. He was not used to seeing his mother like that and, as a teenage boy, it made him very anxious. For example in or about April 2000, his mother returned home looking very shaken and bleeding from a cut on her neck. When he asked her what had happened, she replied with words to the effect of “Julian and I just had an argument and I’m upset”. He probed further and she revealed with words to the effect of “He grabbed me and started choking me in the car while I was driving and he kept threatening me”.
187. At the time of that conversation Ms Monthulé did not reveal to the deponent the exact details of what he had said and done, but she was clearly very shaken. It was not until after the applicant tried to kill her in November 2002 that he discovered that the applicant had held her by the throat as they sat in her car as he described to her in a calm voice how he would gruesomely kill and disfigure her.
188. During Ms Monthulé’s relationship with the applicant, the deponent was aware that the applicant was an alcoholic. In his view, he played a very carefully constructed and ultimately convincing role as a victim, a misunderstood individual at the mercy of his addiction. In Mr Monthulé-McIntosh’s experience, however, the applicant was violent and manipulative in any state of sobriety. He witnessed him being aggressive and abusive towards his mother regardless of whether he was intoxicated or sober. Those traits may have been heightened when he was drunk, but alcohol only served to remove the very little and fragile restraint that he had.
280. The applicant admits that completing the various courses is no guarantee, but maintains that he had made real progress. His life had changed in jail and he had overcome his alcoholism. Through counselling with Ms Kaye Cooke at Grafton, he had recovered his health and sense of purpose. He had worked in the nursery, using his prior experience and expertise. He had renewed his relationship with his ex-wife and they planned to remarry. He was in touch with his children and had reconnected with his children in the United States. He had wanted to participate in a restorative justice program, but the victim had not wished to be involved.
281. There were employment prospects available for him on release. He would live in the Pottsville area and work in the Tweed Heads growth region.
282. Mr Robert Small, who had worked in the Kairos program at Grafton, supported the applicant’s claims of rehabilitation and confirmed that he would assist him in finding employment in the Tweed Heads area. He was not, however, aware of the details of the principal offence, the applicant having told him only that he had attempted to strangle the victim at a time when he was intoxicated.
283. Mr David Allon was also confident that the applicant was rehabilitated.
284. Father Ian Bailey confirmed the applicant’s involvement in self-development, his revulsion at the offence and his wish to be involved with the Restorative Justice Program. He was not, however, aware of the applicant's prior criminal history and in relation to the principal offence, the applicant told him only that he had struck the victim with an iron bar but could not recall a great deal about it. It should be noted, however, that the sentencing judge doubted the applicant’s claim about not fully remembering what he did:
…
I regret to say that I have considerable reservations about the claim of the offender to not fully remembering what he did. I am of the view that his behaviour was premeditated, that he went to the nursery with intent to kill; that intent to kill may have embraced both the actual victim and, had he been there, the young employee.
… (G p92)
285. The applicant’s ex-wife, Ms Bridget Allon, was shocked by the principal offence, but through her visits and contacts with him, had become convinced that he had effectively been reborn. He had employment prospects on his release and she would seek accommodation for him. Ultimately, they planned to remarry. Her commitment to the applicant was corroborated by Mr Wrothwell Wall.
286. Mr William Upton, who had also been involved with Kairos at Grafton, had seen the applicant undergo important changes while incarcerated. He was committed to a normal life in the community, had a good work ethic and a compassionate approach. He was unaware of the details of the applicant’s offences as it was his practice to avoid seeking such information so as not to make judgments about inmates.
287. There were a number of other letters and a statutory declaration in support, but most showed no knowledge of the nature of the applicant's principal offence.
288. The psychologist’s report by Mr Yat Sang Cheung assessed the applicant as being in the low to moderate risk category as regards re-offending. It identified the origin of the applicant’s offending in his lack of adequate skills in managing relationship problems, and he had used alcohol to deal with relationship difficulties because of his childhood experiences. But he did not display a characteristic pattern of antisocial behaviour. The applicant now thinks that a person should not be possessive but should live an independent life without becoming demanding of others. The report stresses the need for the applicant to strengthen his skills in controlling alcohol use, as he would encounter new stressors in the community and the risk of alcohol relapse was greatest when he was in the community.
289. Alcohol alone could not have been a sufficient motive for his crime and the issue could had been a combination of his contribution to the nursery being unappreciated, and jealousy. His deficient skills in dealing with relationship problems and his jealousy could have led him to misinterpret a partner’s behaviour.
290. Importantly, the report notes that if the applicant remained sober but did not deal with his relationship issues, problems could emerge in the future. While his relationship with Bridget could be protective against relapse, if issues came to the fore and the relationship became volatile, it would not be.
291. The report and Mr Cheung's evidence directly contradicts the applicant’s testimony in material respects. He claimed an inability to recall telling Mr Cheung that he had been physically violent with Katharina, which had led to her taking out the AVO, adding later that he could not recall whether or not he had been violent towards her. He claimed that he was not the jealous type and that the attack on Ms Monthulé had been motivated solely by intoxication and resentment over not being paid for his work. The degree of violence involved, however, hardly seems consistent with a mere wage dispute.
292. He claimed that he was not the jealous type and that his violence generally stemmed wholly from alcohol abuse. He said that he and Ms Monthulé at the relevant time were involved with the Orange People movement, which advocated a total freedom in sexual relations that was incompatible with jealousy. It should be noted that until the applicant’s oral evidence at the hearing, there was no reference in any of the evidence to the Orange People or their alleged pan-sexualism.
293. The applicant’s denial of any history of jealousy is also inconsistent with his statements to Dr Westmore, who prepared a psychiatric report for the purposes of the sentencing hearing (G p99).
294. The applicant’s claims also squarely contradict an express, indeed emphatic, finding by Ducker DCJ:
…
I totally reject as a downright untruth his denial as to the motives which took him there on that day. I am left with no doubt whatever that he went there as a result of his sexual jealousy arising from his delusions as to the nature of the relationship between the victim and the young man whom she had employed.
… (G p93)
… it was a premeditated attack … from a motive of deluded sexual jealousy.
… (G pp97, 101)
295. There is also before the tribunal the uncontradicted evidence of Ms Monthulé, Mr McIntosh and Olivier Monthulé-McIntosh that the applicant was habitually aggressive, violent and abusive even when not intoxicated, and often as a result of sexual jealousy.
296. The applicant, who holds a degree in psychology himself, conceded that the psychologist's report “can be read either way”. It attests to the progress he has made in recognising the rationality of his prior thinking patterns and in developing skills for controlling alcohol, but cautions that those skills need further strengthening and that failure to deal with his relationship issues could see problems emerging in the future.
297. On the evidence it is plain that the applicant does not acknowledge his tendency to violent jealousy, which suggests that one main trigger for his offending behaviour may still not have been overcome. That view is plainly shared by several of those who submitted statements in support of Ms Monthulé’s affidavit.
298. The applicant has made a number of failed attempts at rehabilitation from his alcoholism. Dr Westmore reported that:
…
Despite a number of previous detoxifications he has not managed to go into complete sobriety and his history of alcoholism is characterised by relapses and remissions. This has apparently been continuing now for about 20 years. … His prognosis in terms of his ability to enter into sobriety needs to be considered in a guarded fashion.
… (G pp99, 100)
299. All the applicant’s violent offences arose in the context of relationship disputes (see Mr Cheung’s report, para 29). Further, Ducker DCJ stated that:
… the major duty of the court is to protect the public. And upon his release, the public, so far as he is concerned, is likely to be some woman who has found him to be pleasant, thoughtful, and engaging but who may be in danger of serious violence at his hands.
… (G p102)
300. The applicant’s previous general conduct indicates two contributing factors to his past violent behaviour: alcohol and relationship problems. His rehabilitation in relation to either contributing factor cannot properly be established on the basis of his time in Grafton.
301. I accept Mr Cheung’s conclusion that there is a low to moderate risk of the applicant re-offending. I also note, however, the comment of President Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. The Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk. The risk involved in the present case is real within the meaning of the reasons in Batey and as any re-offending could cause great harm, I find that it supports visa cancellation within the principles stated in Re Stone.
Whether the person was a minor on arrival in Australia
302. The third primary consideration deals with persons who were minors when they began living in Australia and spent their formative years here, thereby increasing the likelihood of greater ties and links to the Australian community.
303. As the applicant was aged 34 when he first began living in Australia, this consideration does not apply.
Length of time the applicant was a resident before criminal activity
304. Paragraph 10.3(1) of Direction No 41 states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
305. A note to that paragraph provides the example of a period of more than 10 years’ residence before criminal activity as being an important consideration.
306. The applicant arrived in Australia in 1987 and has not left the country since. He has thus been resident in Australia for 22 years.
307. It is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character.
308. In this case the applicant was charged on two counts of assaulting police on 5 May 1992, while he was still the holder of a V12 visitor's visa and the day before he was granted a class BF subclass 154 visa on de facto spouse grounds. He had thus been in Australia for five years before his first criminal conviction. That conviction counts for these purposes because, pace the applicant’s argument, it need not have resulted in a sentence of 12 months’ imprisonment or more to be relevant for these purposes.
309. While five years is a significant period, I find it insufficient to merit great weight under this consideration, especially as he has spent over a quarter of his time in Australia in prison.
International obligations – the best interests of the child
310. The only international obligation activated in the present case is the convention on the rights of the child. This consideration applies to any child who is, or would be, under 18 at the time when the decision to refuse to grant or cancel a visa is expected to be made: para 10.4.1(1) of Direction No 41.
311. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at para 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note para 10.4.1(5) of Direction No 41, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child, including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation.
312. Direction No 41 indicates that it is generally presumed that a child’s best interests are served if the child remains with its parents. The applicant has one child under 18, Natasha, who was born in Australia in June 1992 and lives in New South Wales with her mother, Ms Katharina Rentschler. She attends Rose Bay College. Natasha is an Australian citizen.
313. In his personal details form dated 11 April 2008, he stated that Natasha's mother refuses to allow him any direct contact with her (G p20), but in written submissions said that Ms Bridget Allon had been in touch with her.
314. The psychologist's report also states that Natasha's mother did not wish to have any communication with the applicant or allow him any contact with the children. He was warned that if he continued contacting his children his letters would not be delivered and his telephone would be intercepted. He is still not allowed to contact Natasha, as she is still a minor (at para 27).
315. His first communication with Natasha was an email from her that he received on the day before the hearing began, but it was forwarded to him indirectly through his son Julian in the United States.
316. Neither Natasha nor her mother has lodged a statement or submitted any other evidence in these proceedings.
317. The applicant thus has no meaningful contact with Natasha (para 10.4.1(5)(a) of Direction No 41) and has had long periods of separation from her before and during his incarceration (para 10.4.1(5)(b)). Given her mother’s resolute opposition to any contact with Natasha (and on the applicant’s evidence she is a highly determined woman), the applicant is unlikely to play a parental role in relation to Natasha up to her 18th birthday, especially given that she is already 17 (para 10.4.1(5)(c) and (d)).
318. A realistic consideration of Natasha's interests as a child indicates that they are unlikely to be affected if the applicant is repatriated to the United States. Even if it were in her best interests for him to remain in Australia, any such benefit would be marginal.
319. As the primary consideration of community protection weighs heavily in favour of cancellation and the primary considerations of arrival as a minor and length of residence before offending do not significantly assist the applicant, the primary consideration of community protection outweighs the consideration of the best interests of the child as part of the international obligations consideration.
Other considerations
320. With regard to the other considerations to which a decision-maker is directed by Direction No 41, para 11(2) states that, where relevant, “It is appropriate that these considerations must be taken into account but, generally, they should be given less weight than that given to primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marital relationship with an Australian citizen, bearing in mind the duration of the relationship and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and the applicant’s age, health, education, language skills and links with the country of origin.
321. The respondent submitted that as para 11 of Direction No 41 states that other considerations may be relevant and, if so, must be taken into account, and the list of other considerations in para 11(3) is expressed to be inclusive, general deterrence and community expectations may be taken into account. As they are not part of the primary considerations, they could not be given as much weight as previously under Direction No 21, but they could be treated as secondary factors. That submission would appear to be correct. The list of other considerations in para 11(3) focuses mainly on the applicant’s welfare and circumstances, but para 11(3)(g) (whether the person has previously been advised of the risk of visa cancellation) relates to matters of community protection. The ejusdem generis rule would thus not apply so as to limit the possible range of other considerations to circumstances related to the applicant’s welfare and family structure. As the respondent expressly refrained from relying on general deterrence and community protection, however, there is no need to decide the point.
322. The applicant has not previously been advised of the possibility of visa cancellation. While the applicant said he had previously conducted a business on the north coast of New South Wales, it came to an end as a result of his incarceration, so that the applicant has no business or similar ties to Australia.
323. Since being granted parole the applicant has re-established contact with his adult son Omar, who is an Australian citizen. The contact appears to be through the applicant’s son Julian in the United States, as he said in cross-examination that Omar is angry at him and wants proof that he is fully recovered. He fears that if he is repatriated his relationship with Omar would be severed, and Mr Cheung thought the bond could become protective. As the psychologist noted, however, he has been absent from most of Omar’s formative years and the bond between them is only developing (para 27).
324. Omar has not provided a statement in these proceedings, nor is there any other evidence of the nature of the recently formed relationship between Omar and the applicant (see para 11(3)(e) of Direction No 41).
325. In the United States the applicant has his son Julian, with whom he has been in contact for some seven years. He is also in telephone contact with his daughter Desirée, aged 39, who lives near New Haven, and has somewhat less contact with his daughter Lovely, aged 32, who lives in Syracuse. He has, he said, reconnected with all his children in the United States, and Julian located the applicant’s father and introduced them.
326. The applicant also has six siblings in the United States. He made contact with them after one of his sisters died recently, but felt that he did not belong with them. He also has 10 grandchildren in the United States.
327. Most of the applicant’s family thus lives in the United States, including Julian, the person with whom he has the most contact.
328. His relationship with Omar is in its infancy and does not appear to be close. Omar has not provided a statement or any other evidence in these proceedings, nor is there any other evidence of the nature of the relationship. He is not in any way dependent on the applicant and would be able to travel to the United States at any time to visit his father. If he wished, he could maintain contact with the applicant by other means, as the applicant’s son Julian does currently.
329. The applicant’s immediate family in Australia would thus, I find, face little disruption and would not suffer hardship if the applicant’s visa were cancelled. The possible disruption of family ties thus merits little weight.
330. The sentencing judge described the applicant as “rootless”, as “drifting in his relationships” (G p97). He has while in custody re-established contact with his ex-wife, Ms Bridget Allon. They are not in a marital relationship within the meaning of para 11(3)(a)(ii) of Direction No 41, but Ms Allon has made some preparations for his release and both parties say they intend to remarry. Ms Allon states that if the applicant’s visa were cancelled, she would join him in the United States, where she has previously lived, although the applicant said he would not ask her to do so.
331. Ms Allon’s father states that she is needed in Australia to help care for him and for her mother, who is in a nursing home and suffers from Alzheimer’s disease. Ms Allon’s parents would not, however, be left without support as their other daughter lives much closer to them than Ms Allon and regularly visits them, although it is not easy for her to be away from her horse property overnight. She did not say whether or not she could have them stay at her property. Ms Allon was aware that the applicant was of character concern at the time she re-established her relationship with him (para 11(3)(a)(ii) of Direction No 41).
332. The applicant is aged 56 and has no medium-term need to access aged care services. As a United States citizen he would be eligible for income support in that country. He is apparently in robust health and able to work. He is well educated, holding a degree from a college affiliated with Cornell University, is experienced in operating his own business and has acquired a number of useful vocational qualifications while in prison. He is articulate and has no inability to advocate for himself (para 11(3)(f)). He has significant family ties to the United States, where he lived until he was 34, and in particular has been in long-standing contact with his son Julian in New Jersey.
333. While he has ties to Australia also, they are of a rather ambiguous nature given that, as the statements, petition and other evidence tendered by the respondent shows, there is a substantial body of opinion in the Mullumbimby-Ballina area and elsewhere that emphatically desires his removal from Australia.
334. I find that the primary consideration of community protection outweighs the other primary considerations and the other considerations in this case. The decision under review is affirmed.
I certify that the 334 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ……..............[sgd].......................................................
Adele Veness, Associate
Dates of Hearing: 2, 3 June and 3 July 2009
Date of Decision: 17 July 2009
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Mr A Orford (2, 3 June 2009), Clayton UtzMr T Eteuati (3 July 2009), Clayton Utz
- AGLC
- Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536
- Case
- [2009] AATA 536
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved the interpretation and application of section 501(2) of the Migration Act, which pertains to the cancellation of a visa based on a character test. The court had to determine whether the tribunal had properly exercised its discretion in cancelling the visa, considering factors such as the protection of the community, the risk of recidivism, and the interests of the applicant's children. The applicant argued that the tribunal had not adequately considered his personal circumstances and the interests of his children, while the Minister contended that the substantial criminal record warranted the visa cancellation.
The court examined the relevant statutory provisions and case law to assess whether the tribunal had made an error in exercising its discretion. It considered whether the tribunal had given proper, genuine, and realistic consideration to the interests of the applicant's children, as required by Direction No 41. The court also evaluated whether the tribunal had correctly weighed the primary consideration of protecting the community against the other relevant factors. Ultimately, the court found that the tribunal had appropriately exercised its discretion and correctly applied the primary considerations under Direction No 41. Therefore, the decision to cancel the visa was affirmed.
As a result of the court's decision, the visa cancellation imposed on Heyward was upheld, and the Minister's direction remained in effect. The court found no merit in the applicant's contention that the tribunal had failed to properly consider his personal circumstances and the interests of his children.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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