Re Kamal and Minister for Immigration and Citizenship

[2009] AATA 555

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 555

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2061

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ibrahim Kamal

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date28 July 2009

PlaceMelbourne

Decision The Tribunal decides that the decision under review is set aside and a decision that the applicant’s visa not be cancelled is substituted.

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

Deputy President

CATCHWORDS – IMMIGRATION – cancellation of visa due to substantial criminal record – visa Class ty (subclass 444) – Direction No. 41 - applicant has no ties to resident country – whether deportation to resident country would prove detrimental to rehabilitation prospects – decision set aside

Migration Act 1958, ss 499(1), 501, 501(2), 501(6)(a) and 501(7)(c)

Kamal and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 563
Maslov v Austria [2008] ECHR [GC] 1638/03 (23 June 2008)
Re Mulugeta and Minister for Immigration and Ethnic Affairs (AAT 9239A, 19 January 1996)
Re Mulugeta and Minister for Immigration, Local Government and Ethnic Affairs (1989) 19 ALD 639
R v Kamal; Kent (Unreported, County Court of Victoria, Hart J, 6 June 2008)

REASONS FOR DECISION

28 July 2009 Mr G L McDonald, Deputy President

1.      The applicant is seeking review of a decision of a delegate of the Minister for Immigration and Citizenship made on 2 May 2009 to cancel his Class TY (subclass 444) visa.  The cancellation of his visa results from his conviction in the County Court of Victoria on 6 June 2008 for an offence of intentionally causing grievous bodily harm for which he was sentenced to four years imprisonment.  As the result of the conviction and sentence the applicant is deemed by s 501(7)(c) of the Migration Act 1958 (the Act) to have a substantial criminal record and therefore he does not pass the character test as set out in s 501(6)(a).  Section 501(2) of the Act provides that in such circumstances the Minister may cancel the applicant’s visa.  However, despite not passing the character test, a decision to cancel a person’s visa is discretionary.  Guidance as to the exercise of the discretion is governed by the terms of Ministerial Direction No. 41 issued, under power granted in s 499(1) of the Act, on 3 June 2009.  The decision made by the delegate to cancel the applicant’s visa was made under the previously existing Direction No. 21 which was revoked[1] and replaced by the Direction No. 41.  It follows, this being a de novo consideration of the applicant’s case, that the terms of Direction No. 41 apply.  The decision under review, if affirmed, would result in the applicant being returned to New Zealand, as he is a citizen of that country.

[1] Clause 3 of Direction No 41.

2.      This is the second application made by the applicant to have a decision to cancel his visa reviewed.  The first occasion arose following his conviction and sentence to 14 months imprisonment for the offences of robbery and false imprisonment on 28 May 2004.  At the time of the commission of the offences and his sentencing the applicant was still a child.  His application to the Tribunal was on that occasion successful in having the visa cancellation set aside.  In the reasons for the decision the Tribunal said:

He [the applicant] knows that if he re-offends he will not receive any further chances.[2]

[2] Kamal and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 563 at [73] per Deputy President Block.

3.      It is likely that that comment was made having regard to the then applicable Direction, which required a decision maker to take into account, as a secondary consideration, whether or not a person had previously been warned about conduct which may bring the person within the visa cancellation provisions of s 501 of the Act.[3]  Clause 11(3)(g) in the current direction is in similar terms.  Accordingly, some weight must be given to the previously administered warning, although it cannot be regarded as being binding on this Tribunal’s assessment of how the discretion should be exercised.  Similar admonishments have been issued, no doubt with a view to encourage a person to comply with the law, but on occasions and depending on the circumstances, the Tribunal has not implemented such warnings in subsequent decisions.  In Re Mulugeta and Minister for Immigration, Local Government and Ethnic Affairs[4] the applicant was advised in the following terms:

…if the applicant is convicted of any further serious offences, it would be unrealistic for him to expect that he would not be deported.[5]

[3] Clause 2.17(k) of Direction No. 21.

[4] (1989) 19 ALD 639 at 644.

[5] Under the provisions of the then Act, being the equivalent of s 501 of the present Act.

4.      Yet in Re Mulugeta and Minister for Immigration and Ethnic Affairs[6] the Tribunal, for a second time, set aside the decision to deport the applicant.

[6] AAT 9239A, 19 January 1996.

5.      The applicant’s early childhood is, when compared to the standards which could be expected in the Australian community, properly described as tragic.  He was born in Ethiopia on 10 June 1986.  His mother died when he was three years of age and his father disappeared.  The applicant claimed that his father abandoned him and he has not heard from his father since.  His aunt, Ms Amina Muktar, assumed custody and care of the applicant.  She is said to be only 10 years older than the applicant so was approximately 13 years of age when she undertook this responsibility.  She and the applicant left Ethiopia, which was then in turmoil following the assumption of power by the violent President Mengistu, and fled to Kenya, where they spent the next seven years in a refugee camp.  The applicant’s second cousin (sometimes described as his uncle), Mr Siraj Hussein, was also in the same refugee camp and while there he married Ms Muktar.  There were few facilities and no educational opportunities available in that period.  In 1994 Mr Hussein left to live in New Zealand.  In 1997 New Zealand accepted Ms Muktar and the applicant as refugees, and they were reunited with Mr Hussein.  The applicant commenced school at the age of 10 or 11 years.  He had no literacy or numeracy skills in any language and did not speak English.  Unfortunately, Mr Hussein and Ms Muktar’s marriage broke up in approximately 1999 and Mr Hussein migrated to Australia.  Ms Muktar and the applicant followed in 2000.

6.      The applicant resumed his school education in Australia at the Hawthorn Secondary College.  He described his first year at school in Australia as being “good”[7] but in the second year things changed.  The applicant fell in with bad company and commenced missing school and as he described it in his statement “… drinking alcohol, getting into trouble with the law and going off track.”[8]  His explanation for doing these things was so that he could be accepted by the other boys.[9]  He started to use his aunt’s house when he could not find accommodation with the other boys.  He did not accept her pleading with him to keep out of trouble.  Approximately 19 months after arriving in Australia he is recorded as being convicted in the Melbourne Children’s Court of armed robbery, possessing graffiti implements and possessing cannabis.  Further similar convictions were recorded over the following two year period and the applicant was initially released on Youth Supervision orders until, on 11 March 2003, he was ordered to be detained in a youth training centre, fined and ultimately imprisoned on 28 May 2004 for a term of 14 months.  Many of the offences involved robbery of mobile telephones and money from children of a similar age to the applicant.  His conviction in May 2004 was followed by the first visa cancellation from which he successfully applied to this Tribunal for review.

[7] Exhibit A1, paragraph 8.

[8] Exhibit A1, paragraph 12.

[9] Exhibit A1, paragraph 13.

7.      The offences which give rise to the visa cancellation the subject of this review occurred on 9 September 2006.  The applicant and his co-accused were convicted, after a jury trial, of causing an affray and intentionally causing injury to the victim.  The victim was a young man who was set upon by the applicant, his co-accused and others and beaten.  In the course of the beating the sentencing judge found that the applicant slashed the victim’s stomach twice, apparently using a Stanley knife.  The two slashes required a total of 22 stiches and have left the victim with a permanent scar.  The applicant told the Tribunal that one of his party had been ‘king hit’ and it was this which started the incident.  The sentencing judge made no such stated finding commenting only that “something happened” between the applicant’s co‑accused and the victim.[10]  Sentences of six months for the affray offence and four years for the intentionally causing serious injury offence, to be served concurrently, were imposed on both the applicant and his co-accused.  The applicant was eligible for parole in from 16 February 2009 but has remained in custody.

[10] R v Kamal; Kent (Unreported, County Court of Victoria, Hart J, 6 June 2008) at [2].

8.      The applicant provided a statement and gave oral evidence to the Tribunal.  The applicant admitted that he had not been entirely honest when giving evidence in the first Tribunal hearing.  However, he was accepted by the respondent as being honest in the answers to questions asked of him in the instant hearing.  The applicant stated that he felt very ashamed of his previous behaviour which led to his current conviction and sentence.  He also stated that he accepted responsibility for his part in the events and expressed remorse to the victim.  During his time in prison the applicant, with one lapse, has remained drug and alcohol free.  He has been engaged for the past 18 months in the manufacture in the prison workshop of nuts and bolts.  He has also successfully completed a number of courses including ‘Exploring Change’, a cognitive skills course and an alcohol and drug treatment program.  It is anticipated he will undertake a literacy course as part of his parole requirements.

9.      The applicant acknowledged the assistance provided to him by Mr Johnny King, in particular, in finding him employment.  However, the employment was too far from his accommodation and he often arrived late.  After a month his employment was discontinued.  Following release in 2004 the applicant had voluntarily helped with the redesign of an area at the Brosnan Centre including in the building of a basketball court.

10.     The applicant has had the ongoing support of the Brosnan Centre since 2004.  The Centre is run by the Jesuits and offers programs to assist young males who have been convicted and sentenced to terms of imprisonment.  In particular, in 2005, following his release from prison, the applicant was counselled and assisted by Mr King under the auspices of the ’Bridging the Gap’ program.  Mr King assisted the applicant to obtain social security benefits following his release, arranged supported accommodation, ultimately leading to assisting the applicant to find independent accommodation and placement in a job through the ‘White Line’ program.[11]  Mr King provided supportive evidence for the applicant before the first Tribunal hearing and expressed his disappointment and anger with the applicant’s re‑offending.  However, Mr King felt that the applicant had now, as he put it, ‘turned the corner’ and had reached important conclusions about himself and that the applicant needed now to reconnect to his family and culture.  Mr King felt assured that the applicant had the capacity, will power and desire to change for the good.[12]

[11] A program which, in conjunction with sympathetic employers, places discharged prisoners in work.

[12] Exhibit A2, paragraph 21.

11.     In addition, Mr King told the Tribunal that he had visited Mr Hussein at his home and discussed the desirability of the applicant initially living with the Hussein family after his discharge from custody.  Mr King said that Mr Hussein was aware of what he was taking on in having the applicant stay with him, his wife and eight month old child.  Mr King felt that Mr Hussein, who operates his own learner driver business and coaches a local soccer team, is a committed Muslim and a leader in the Ethiopian community would exercise a positive influence on the applicant.

12.     The applicant expressed his willingness to stay with Mr Hussein after his release, knowing that Mr Hussein does not tolerate alcohol or drugs and is religious.  The applicant said that Mr Hussein would provide a good influence on him and lived in an area where he would not be tempted back into bad company by his former mates.  The applicant expressed the view that he felt more mature now and stated that he wanted to obtain employment, that he wanted to take up training of soccer players,[13] as well as learn Arabic and develop English literacy skills.  The applicant maintained that he had not retained ongoing contact with any of his school friends in New Zealand.  While he acknowledged his past criminal behaviour he maintained that he had been too immature to appreciate the opportunities given to him.  He felt that situation had now changed and that he was no longer “... that silly young person I used to be …”[14]

[13] Something which he had done for other youth before his imprisonment.

[14] Exhibit A1, paragraph 71.

13.     In the three months leading up to this Tribunal hearing Mr Ron Zarth was assigned as the applicant’s ongoing case officer and he has had more contact with the applicant over that period than has Mr King.  Mr Zarth had discussed the applicant’s offending with him, assisted the applicant in the preparation of his statement for this hearing, talked about the applicant’s time in prison and discussed his relationship to members of his family.  Mr Zarth felt that the applicant was genuinely remorseful of his offending and that their discussions had helped the applicant gain a better appreciation of his goals to lead a better life in the future.  Mr Zarth has also spent time with Mr Hussein and his family, additionally taking Mr Hussein to see the applicant at the Barwon prison.  Mr Zarth was of the view that Mr Hussein would be a key person in the applicant’s future.  Both Mr King and Mr Zarth said that the ‘link out program’, which would be used to support the applicant, would be extended for a period of 12 months and could be extended further if required.  The program would assist in the reconnection between the applicant and his family and in the search for employment.

14.     The Tribunal also had before it a letter of support from the applicant’s aunt Ms Amina Muktar.  This Tribunal, like that in the first hearing, detects a degree of disappointment in Ms Muktar’s feelings towards the applicant.  She nevertheless is supportive of the guidance which Mr Hussein could provide to the applicant.

15.     Mr Hussein expressed his willingness to have the applicant live with him and his family should the applicant be permitted to stay in Australia.  Mr Hussein had discussed the issue with his wife who was also ready to provide support.  It appears that the extent and full circumstances of the applicant’s criminal history had not been discussed with Mr Hussein.  However, when these were put by Mr Wee to him in the course of the hearing Mr Hussein maintained his willingness to be involved and have the applicant stay with his family.  Mr Hussein said that the applicant had impressed him in their discussions at Barwon prison with his determination to leave behind his ’bad’ friends, give up alcohol and find employment.  Mr Hussein has offered to involve the applicant in the local sports team, particularly in playing soccer, and introduce him into the local Ethiopian community.  It was Mr Hussein’s evidence that most Ethiopians who had been accepted by New Zealand as refugees had ended up coming to Australia.  Accordingly, if the applicant was returned to New Zealand he would have no family support as not any of their family had remained in New Zealand and little community support.

16.     The Tribunal was considerably assisted by a psychological report dated 16 July 2009 and arranged by the applicant’s solicitors.  The psychologist. Ms Pam Matthews, concluded that the applicant did not suffer from any major mental illness, that the applicant’s vagueness was a defence against memories of his early childhood and in more recent times is likely to have arisen from substance abuse[15] resulting from peer factors and emotional avoidance factors.  Ms Matthews stated:

… He has a developmental history of attachment loss, cultural dislocation and exposure to domestic violence and substance abuse which the writer has no doubt has clinically impacted upon the behaviours he has displayed in the community.

At the time of his offending he was definitely exhibiting symptoms of adolescent acting out, precipitated it seems by further cultural and attachment dislocation with the move from New Zealand to Australia.  Mr Kamal has suffered many significant relationship losses and dislocation in his life, in the writer’s view the move away from a familiar environment and friendships would have had a far greater negative emotional impact that one might normally expect.  His greatest fear is losing the remaining family he has left, he is cognisant he has significantly contributed to the loss of the relationship with his aunt and he must now rebuild that relationship.  If deported Mr Kamal is in the writer’s view likely to suffer further emotional decompensation.  In the writer’s view Mr Kamal is a very vulnerable young person.

Mr Kamal evidences symptoms consistent with the avoidance aspects of Post Traumatic Stress Disorder and adolescence.  Psychologically adolescence is a stage of development which is not marked by chronological age but rather the attainment of emotional milestones.  It is a stage of development in which boundaries are tested, risks are taken and peer relationships predominate over family values.  In this regard at the time of his offending Mr Kamal had not completed his formative years, although recent indications of growing maturity would suggest he is now progressing towards adulthood.[16]

[15] Alcohol and drugs.

[16] Exhibit A7, paragraphs 20 to 22.

17.     Ms Matthews concluded that the applicant’s chances of reoffending were moderate and that it would be worthwhile to consider giving him a further chance to prove himself.

18.     The message expressed by all of the applicant, Messrs King, Zarth and Hussein as well as Ms Matthews is one involving hope based on the emotional maturation evidenced by the applicant during his current term of imprisonment.

19.     The Tribunal must, however, look to the terms of the Minister’s guideline and reach a determination in accord with its Direction.  The four primary considerations are set out in clause 10(1) of the direction as follows:

(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)whether the person was a minor when they began living in Australia;

(c)the length of time the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

20.     Clause 10.1.1(2) sets out the government’s view of what constitutes serious offences and included are crimes of violence, reckless assaults and robbery.  Other factors to be taken into account include the extent of the person’s criminal record, the nature and number of offences and the time between the offences as well as the time which has elapsed between the commission of the most recent offence.  Other factors set out in clause 10.1.1(4) relevantly include the remarks made by the sentencing judge, and psychological or other authoritative reports obtained, any victim impact statement and any mitigating factors provided by the person.  Omitted from the new Direction is the assessment by the expectation of the Australian community.  Clearly, risk of re-offending is an important factor discussed in paragraph 10.1.2.  A new factor not previously addressed is the length of time the offender may have been a minor while living in Australia.  In this case the applicant has no children and the best interests of any child do not need to be considered.  An aspect of Australia’s international obligations arising under the ICCPR was raised and reference to the Maslov v Austria[17] was made.  The Tribunal has not found it necessary to address this issue.   Clause 11 of the Direction sets out other secondary factors which are to be considered relevantly including family ties, the person’s age, any links the person may have to the country to which they will be returned, hardship likely to be experienced by the person, the person’s level of education and whether the person has previously been advised about their conduct.

[17] [2008] ECHR [GC] 1638/03 (23 June 2008).

21.     The applicant’s offending is serious and, as Mr Wee pointed out, the applicant’s offending involves accelerating violence over time.  The victim in the most recent attack has incurred permanent scarring and has been traumatised by what was a vicious assault in which the applicant used a weapon to inflict injury.  Previous victims included minors and also involved violence or the threat of it.  The most recent offence was carried out on an individual by a number of people but the two principal offenders included the applicant.  There is only a moderate chance that the applicant will not re-offend and the Tribunal takes into account that he has done so following a previous warning.  All of this suggests that the discretion should be exercised against permitting him to retain his Australian visa.  There are, however, reasons to be balanced against this view.

22.     The applicant was a minor when he came to Australia at the age of 14 years.  He had committed no offences in New Zealand.  He commenced committing offences in Australia approximately 19 months after his arrival.  He was still a minor. The Tribunal has formed the view that being a minor when he arrived in Australia should be accorded greater weight than the time that he had been resident prior to commencing engaging in criminal activity.  That is, if circumstances arise in which clause 10(1)(b) applies then that should be accorded greater significance than the time spent in Australia before the commencement of offending (clause 10(1)(c)).

23.     In this case, although the crimes are serious, the applicant was not sentenced to an extended term of imprisonment.  The sentencing judge took into account the applicant’s youth and that rehabilitation was an important sentencing aim[18] and also noted that there may be benefit from a period of parole longer than may be usual.[19] Importantly, His Honour noted that the applicant would benefit from supervision and guidance but that that would not be effective unless the applicant was “… man enough to genuinely want to change.”[20]

[18] R v Kamal; Kent (Unreported, County Court of Victoria, Hart J, 6 June 2008) at [9].

[19] Ibid, at [14].

[20] Ibid, at [12].

24.     The offences committed by the applicant have occurred over a five year period.  The nature of the offences is consistent with, as noted earlier, an escalating level of violence.  However, the evidence of Messrs King and Zarth and of Ms Matthews supports the applicant as having the desire and potential to achieve a change in his lifestyle.  Family support is being offered.  Mr Hussein is obviously committed to the principles by which he lives and his offer of accommodation takes with it a measure of supervision for the applicant.  The applicant regards Mr Hussein as a father figure and acting in this capacity Mr Hussein may well provide support of a nature not previously experienced by the applicant.  Mr Hussein recognises the support he will be given through the Brosnan Centre, and no doubt should the applicant be released on parole, the parole authorities, and so the supervisory burden does not fall on Mr Hussein’s shoulders alone.

25.     The applicant has now no ties to New Zealand.  For him to be returned there would more likely than not be detrimental to his expressed efforts to be rehabilitated.  There is, as far as the Tribunal is aware, no process whereby New Zealand authorities can assume the role the parole authorities in Australia undertake.  The applicant will have no support from relatives and the Tribunal accepts that little support will be available from what appears to be a diminished or diminishing Ethiopian community in New Zealand.  Whereas both family and community support are available if he is to remain in Australia.  The Tribunal considers the report of Ms Matthews as valuable in providing an insight into the applicant’s behaviour.  While immaturity does not provide an excuse for his behaviour, his tragic background goes a good way to explain him as wanting to be accepted even although this resulted in his acceptance by the wrong group.

26.     The Tribunal has experienced some difficulty in balancing the relevant factors applicable in this case.  In the end it must be appreciated that the applicant, as an immature youth, came to Australia and fell in with the wrong group of people, resulting in him committing a series of serious offences.  It is recognised he has had an unusually deprived background as a child and not had the close family attachments or educational opportunities which could be expected if he had been born in New Zealand or Australia or a country with a stable government.  There is evidence that he is reaching maturity rather later than is suggested by his chronological age.  He has strong family and institutional support which bodes well for his future.  These factors outweigh the risk to the Australian community which arises from him constituting a moderate risk of reoffending.  If Ms Matthews had found that he presented a high risk then the Tribunal’s decision may have been different.  Three practically experienced people – Messrs King, Zarth and Hussein – express confidence in the applicant’s ability and determination to do better in the future.  He should be given that opportunity.

27.     For the reasons expressed the decision under review is set aside and a decision that the applicant’s visa not be cancelled is substituted.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President G L McDonald

Signed:         .........................................................            

Kate Conners, Associate

Date of Hearing  24 July 2009
Date of Decision  28 July 2009
Counsel for the Applicant               Ms Christine Melis
Solicitor for the Applicant                Russell Kennedy
Solicitor for the Respondent           Mr Bryan Wee

Solicitor for the Respondent                     DLA Phillips Fox