Re Kelly and Minister for Immigration and Citizenship
[2007] AATA 1678
•20 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1678
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2282
GENERAL ADMINISTRATIVE DIVISION )
ReMontana Ronald Michael KELLY
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date20 August 2007
PlaceSydney
DecisionThe decision under review is affirmed.
...................[sgd]...........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – applicant’s visa cancelled for failure to pass character test – applicant has an extensive criminal history and at the hearing conceded that he did not pass the character test – applicant made claims of personal danger if he were to return to New Zealand- tribunal did not accept these claims as truthful – discretionary factors considered – found to be no substantial break in applicant’s record of criminal violence – risk of re-offending at least moderate to maybe high – community would expect that the applicant’s visa be cancelled, particularly in view of the serious nature of his violent criminal conduct – primary considerations of community protection and expectations outweighed the other considerations in this case – decision under review affirmed.
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RELEVANT ACT/S:
Migration Act 1958: ss 499(1), 499(2), 499(2A), 500(6B), 501, 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780,
Al-Kateb v Godwin (2004) 219 CLR 562
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Green and Minister for Immigration and Citizenship [2007] AATA 1410
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81
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OTHER REFERENCES
International Convention on Civil and Political Rights
Direction No 21
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REASONS FOR DECISION
20 August 2007
Professor GD Walker, Deputy President
Summary
1. On 24 May 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act). The applicant sought review of that decision on 31 May 2007 by application to this tribunal.
Issue
2. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is 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 21.
3. At the hearing, the applicant was represented by Mr David Patch of counsel, instructed by Ms Abigail Bannister, solicitor of Bannister Kyriacou Nasser, and the respondent by Mr Tigiilagi Eteuati, solicitor of Clayton Utz. 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. The applicant’s sister Tauna Pekepo and his adoptive father John Kelly gave evidence via phone link from Melbourne.
Relevant Law and Policy
4. 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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5. “Substantial criminal record “ is defined in s 501(7)
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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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6. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
7. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Basic facts
8. The applicant Montana Ronald Michael Kelly was born in New Zealand on 14 February 1980 and is a citizen on that country. He first arrived in Australia on 24 February 1989 with his adoptive parents, but returned to New Zealand on 29 June 1990 to live with his grandmother and natural mother, returning to Australia on 24 May 1993.
9. The following year, he received his first criminal convictions, for two counts of breaking, entering and stealing and three counts of breaking and entering with intent. He was sentenced to control orders to the rising of the court on each charge.
10. Thereafter, he developed an extensive criminal history and until 2000 was charged every year for offences ranging from attempting to steal to common assault. Most of his offences involved violence towards persons or damage to property as well as theft. On 19 June 1997 he was convicted of armed robbery in company and demanding money with menaces and was sentenced to a minimum term of 12 months’ imprisonment with an additional 12 months for each offence. On 23 June 2000, he was convicted of robbery in company and sentenced to two years and six months’ imprisonment. On the same date, he was convicted of robbery while armed with an offensive weapon and sentenced to five years with a non-parole period of two years.
11. On 15 June 2005, he was convicted of assaulting a law enforcement officer (a corrections officer) inflicting actual bodily harm and was sentenced to two years’ imprisonment. That was reduced on appeal to 12 months.
12. On 24 May 2007, a delegate of the Minister for Immigration and Citizenship cancelled Mr Kelly's visa on the grounds of his substantial criminal record pursuant to s 501(6)(a) and s 501(7)(c) and (d) of the Act. On 31 May 2007, he applied to this tribunal for review of that decision.
Applicant’s evidence
13. At the directions hearing held on 22 June 2007, I stressed to the applicant the importance of filing and serving a written statement, as well as statements by any other witnesses on whose evidence he intended to rely, pointing out the consequences of s 500(6H) and (6J) of the Act. Nevertheless, after several weeks the applicant had not lodged a witness statement. After he obtained legal representation, an application was made on his behalf for an adjournment to enable proper preparation of his case. An adjournment was granted, despite the fact that, by reason of the statutory time limit in s 500(6L)(c) of the Act, the adjourned dates for the hearing significantly abridged the time available before the time limit expired.
14. At the hearing, as he had still not lodged a witness statement, the applicant relied on his earlier statements, G pp101, 103-104.
15. In the first of those which, like the second, appears to have been written in response to the respondent’s notice of intention to consider cancellation of his visa, the applicant stated that he has lived in Australian full-time since 1993 when he was aged 13. His adoptive parents live in Melbourne and they are his main social and emotional support. He has family in New Zealand but has little contact with them and they could offer him no emotional, physical or financial support if he were removed to that country. He has safe and secure accommodation arranged with his adoptive parents John Kelly and Mere Kelly (who are actually his aunt and uncle) and his stepsister, Tauna.
16. His family were concerned by his possible removal and were assisting him in obtaining employment and organising appointments with community agencies. He stated that if he is to succeed on his release he would require all the support he could obtain in order to readjust, and that could come only from his family in Australia. “My family and associates in New Zealand have criminal elements and I foresee that this will contribute greatly to my re-offending in New Zealand if I am deported”. He is now “sick of being incarcerated” and if released from custody, would be in a better position to support himself through employment.
17. In the second statement, he wrote that he is the eldest child of his natural father, Sonny Smith, who has three children to his mother’s younger sister and four other children to other women. He has not yet met all his brothers and sisters. He was legally adopted by Mr and Mrs Kelly in 1981.
18. When he was young he stayed with his grandmother (in New Zealand) when both his parents were working. When he was about two it was discovered at a Maori school that he was deaf in one ear. His hearing was tested and he was given hearing aids to wear, but he refused to wear them. His hearing problems hampered his education, as did the fact that he had a short span for sitting still and concentrating.
19. After relating some more family history, the applicant stated that his brothers, sisters and cousins were always close, but he was himself not always a model child. He kept in touch with his parents in Australia every week and wrote to them regularly while he was in New Zealand. As he was in trouble in high school in New Zealand in 1993, his parents arranged for his return to Australia as his mother considered that he was their problem and not his grandmother’s. After his return to Australia, “I was in and out of juvenile centres”. Beyond that, his statement says little about his criminal career.
20. At the hearing, the applicant said that his half-brother was in jail in New Zealand following conviction in relation to a shooting, as was another half-brother. His father is a leader of a criminal gang called the Mongrel Mob, the largest criminal gang in New Zealand, which is involved in every form of crime. His uncle is the gang leader, and his natural father is the second-in-command.
21. His father had shot a Black Power gang member who was attempting to move in on his territory, while his half-brother had shot a Hell’s Angel. As the term “a shooting” can cover incidents varying widely in seriousness, I asked Mr Kelly if he was talking about fatal shootings. He did not reply but said that some time previously a two-year old girl had been killed in a similar situation.
22. The applicant said that if removed to New Zealand, he would be in a hopeless situation with only two options: going onto the dole or becoming a gangster. It would be impossible for him to get a job. He did not wish to be a gangster, but if he refused to join, his family would cut him off, which would put him at risk. He would be either “smashed up or shot”, as he would be on a hit list if he walked away from the gang.
23. Mr Noa had promised him employment in his car repair business if he were released. He would live with his parents in Melbourne. Previously, he had been in employment only for short periods, but that was because in those days he was greedy and impatient. Now he takes one day at a time.
24. The applicant was asked about the correction services records stating that when he was at the Metropolitan Reception and Remand Centre (MRRC) at Silverwater while being moved to Cessnock Correctional Centre, he was found with a prison-made knife after a cell search. Soon afterwards, custodial staff alleged that he was involved in “numerous stabbings” that took place at the MRRC in January 2002. He was then immediately moved to Lithgow Correctional Centre where, on arrival, it was alleged that he stabbed another inmate. No charges have been laid in relation to those incidents. Because of the serious nature of the incidents, he was transferred back to Goulburn Correctional Centre and placed in the High Risk Management Unit (HRMU).
25. His response was that at the time he had been reclassified as C1 and for that reason was being transferred to the lower security facility at Cessnock, having previously been at Goulburn. While he was at Silverwater, the knife was found in the cell, but it was his cellmate’s knife and he himself had been in the cell for only three and a half hours when it was found. His cellmate had admitted to the authorities that the knife was his. He had never stabbed anyone in jail, but had committed assaults two or three times.
26. He denied any responsibility for the stabbings and said he had never been invited to give his side of the story. Nevertheless, he had been reclassified and sent to Goulburn, where he remained until the end of his sentence. The move “destroyed me big-time”, because he had behaved while first at Goulburn in order to be reclassified so as to obtain work release, but that had been taken away from him.
27. He also denied the Probation and Parole Service reports that he had been uncooperative. At the parole board hearing, the parole officer had said she had asked him about his crimes, but she had not. The board said he had displayed no remorse, but that was because he had not answered the question.
28. In the HRMU, no courses were available, as the unit is regarded as a program in itself. Otherwise he would have done courses while in jail, but instead he picked up habits of anger and violence.
29. Reminded that while on parole once before he had soon resorted to violent crime, he said that was because at the time his mother had no job and was living on a pension. His parents were living in a caravan park and he could not live at home because his parents “couldn’t afford to look after me”. There were also tensions with his mother, but they were in the past. In those days no family support had been available to him, but that was no longer the case. Further, previously he had been unable to communicate and had therefore found it difficult to interact with people. In those days he would not have listened at a hearing such as the present one.
30. He said that he was fit and healthy and able to work. He would accept counselling to help him deal with his problems of communication, anger and with adjustment to society. If he were separated from his family, he would be crushed.
31. In cross-examination he said he had eight brothers and seven sisters in New Zealand, as well as an unknown number of aunts and uncles. He did not know when his natural father was due to be released from prison. Before his incarceration, his father had been living at Hawke’s Bay, as were most of his siblings. His father is the senior Mongrel Mob member at Hawke’s Bay. His whole family are gangsters, “even the little kids”.
32. He himself did not wish to join a gang, but if he refused to do so he would be “cut off”. If he were removed to New Zealand, other gangs would pursue him and would kill him in order to hurt his father. If he were a gang member, he could not be touched because he would be among “soldiers”, and if he were harmed “there would be a war and everyone would be slaughtered”.
33. When he was released into the community in 1999, before his most recent term of imprisonment, he had not lived with his parents because they could not afford to have him. They had moved to Melbourne in 2001.
34. His main contact with his New Zealand family was at Christmas and birthdays, and through letters. He agreed that he would be able to obtain help in New Zealand to deal with his problems, but said he did not want to go there. His family had moved to Australia in order to escape the gang milieu.
35. In re-examination, he said that he regretted his violent crimes, and recognised that one of his women victims had been terrorised for life. He had been involved with drugs, including marijuana, amphetamines and heroin, but ceased taking them in 1999, presumably when he was incarcerated.
Evidence of the applicant’s family
36. The applicant’s adoptive father Mr John Kelly in his oral evidence adopted his undated statement (Exhibit A7), in which he said that the applicant should be given at least one more chance to remain in Australia as there is more opportunity here than in New Zealand. “If he was deported to New Zealand the concerns my wife and my family and myself would have is that he would end up in the gang life and that would shatter and destroy us greatly”.
37. Before the family had moved to Australia, Mr (John) Kelly had a dispute with a couple of gang members because they broke into his house and stole a number of items. It was the applicant's natural father (Sonny Smith) who had dealt with the matter, as he was their leader and still is to this day.
38. At the hearing Mr Kelly said that if the applicant were returned to New Zealand, he would fear for his safety as he would be under pressure to join the Mongrel Mob. If he refused to do so he would be hurt and possibly killed, because they would not take “no” for an answer.
39. If he were released into the community he could live with them in their three-bedroom rented house, with his own room. He had not lived with them the last time he was at liberty, because at that time he and his wife were occupying a two-bedroom mobile home. At another point in his evidence, however, Mr Kelly said that he and his wife were parted at the time.
40. He and the applicant had gone around together looking for accommodation and had together found the mobile home. Mr Kelly offered the applicant the opportunity of staying with them (or him), but the applicant refused as he had other plans. He wanted to stay at a place of his own choosing, in a big house.
41. Asked what support they had offered the applicant last time he was at liberty, Mr Kelly said that apart from love, they offered him nothing because he was working. He felt they had not told him how much love they had for him.
42. This time things would be better because they were getting on together better than ever. His uncle Thomas Noa had offered him work in his business, and he could remain there as long as he wished. He had changed a great deal, and had matured, having had time to think about the road that he would take. Mr Kelly had noticed the change about four years ago, around 2003. When it was pointed out to him that the applicant was convicted of assault occasioning actual bodily harm in 2005, Mr Kelly replied that he had not been aware of that conviction, but felt that the applicant had changed and now had a better attitude.
43. In New Zealand, people were waiting for him to return and, according to his daughter Tauna, would expect him to take over his father’s position in the Mongrel Mob while he was in jail. They would hurt him if he refused because they do not like to take “no” for an answer. In addition, rival gangs would hunt down the son of a rival gang leader. He was thus in danger both from the Mongrel Mob and others. Asked why that would be, he said he did not know what to say and did not want to talk about it. He was simply going on what his daughter had said and “just other things”.
44. The applicant's sister, Tauna Pekepo, is employed as a labourer at the meatworks. At the hearing she adopted her statement (Exhibit A5). After outlining some family history, the statement relates that the applicant had started stealing at about the age of 11 in order to buy things that their parents could not afford. As their parents were “constantly fighting” and the family was continually moving, their parents did not realise what was happening with her brother. Eventually he was excluded from all high schools and sent to a school for troubled students, eventually being arrested and sent to a juvenile centre.
45. During the last eight years in which the applicant has been in custody, life in New Zealand has changed. It is full of gang crime and drug abuse. The applicant's younger siblings are affiliated with gangs and their father is currently in prison, as are two of his younger brothers. In 2006, their cousin was shot dead outside his home as a result of gang affiliations. Another cousin (or perhaps half-brother), who had shot a Hell’s Angel, was imprisoned at an undisclosed location for his own protection.
46. Many of the family members are currently involved in drug-taking or drug trafficking. If the applicant returns to New Zealand, “who knows what will happen”. “They are actually waiting for Montana to go back to New Zealand to take over our father’s position while he is in jail and begin there [sic] war and this is really concerning our parents in Australia. They are seriously thinking that they’ll never see my brother again if you know what I mean, it doesn’t matter where in New Zealand you take my brother he will be in danger”.
47. At the hearing Ms Pekepo in her evidence in chief offered further information concerning the New Zealand situation. On behalf of the respondent, Mr Eteuati submitted that the tribunal could have no regard to that information by reason of s 500(6H) of the Act. That appears to be correct, as the evidence goes beyond mere amplification or filling in of detail, but adds references to new incidents and circumstances. As I do not think, for the reasons given below, that the evidence would assist the applicant's case even if regard were had to it, I think it permissible to give a brief outline of it.
48. Ms Pekepo said that when she was visiting New Zealand on 5 November 2006 for her grandmother’s funeral, she talked with a number of the numerous family members present. The president of the Mongrel Mob had told her that he was waiting for the applicant to return to New Zealand to give him “a patch”, meaning a territory for criminal activities.
49. At that time, the president had said nothing further, but Ms Pekepo said that she had since heard that the Mongrel Mob wanted the applicant to take over his father’s job “to start a war with Black Power”. She thought the applicant did not want any part of the gang but she believed that if he did not join he would be beaten and probably killed by Mongrel Mob gang members. Other gangs also, if they heard he was in New Zealand, could hunt him down and kill him. She thought there was a 60 to 100 percent chance of that happening. Their cousin had been killed last July for gang-related reasons.
50. She said that she would be sad if he were sent back to New Zealand, just as she had not been happy about his being sent to jail. She would fear for his life.
51. The last time he had been at liberty, he had seriously re-offended, but this time he would stay out of trouble. She thought he might find it hard to hold a job, but he is now more mature and no longer wants to steal. He aims to do everything honestly now.
Written lay evidence in support of the applicant’s case
52. The applicant's adoptive mother, Mrs Mere Kelly, did not write a statement for the purposes of the tribunal hearing, but the applicant relied on her letter to the department, sent on or about 31 May 2007, which formed part of the G documents (G pp112-114). After setting out a good deal of family background, Mrs Kelly states that the applicant has a Cook Islands background through both his natural and adoptive mothers. He has family in New Zealand and the Cook Islands, but his adoptive parents and his brother and sister are in Australia.
53. She would be concerned if the applicant were returned to New Zealand, because she sees in him his natural father, who is involved in gang activities even now. Employment in New Zealand is difficult to obtain and it is a struggle to hold onto it. The cost of living is high, as is the crime rate. “If he stays both [of us] will try our utmost to try and obtain employment for our son, but our first priority we feel is to get him involved – and be excepted [sic] into society”.
54. Mr Thomas Noa, the applicant’s uncle, stated (Exhibit A4) that when the applicant was aged about 10 or 11 he “got into this [sic] usual antics a child of his age would do”. Subsequently, he rebelled because all his parent’s attention went to his younger sister Tauna and he felt rather left out. Mr Noa said he had become involved in all kinds of trouble and had been picked on by the local police, but now that he had finally served his jail time, Mr Noa was in a position to offer him employment in his mechanical workshop at Sunshine as a general labourer.
55. In the opinion of Zhanshada Pekepo, it would be “unfair” if her brother were returned to New Zealand where he might “encounter many disadvantages in a country he has not been back to in many years” (Exhibit A3). His family here in Australia could give him the support he needs to move on with his life and to help him to build a better future. “Give us a chance to do this so we all can have a healthy and fantastic lifestyle, all he needs is our support I’m just not sure he will get what he needs in New Zealand”.
56. Georgina Hunt is a Polynesian outreach worker. In her undated letter probably written on or about 2 August 2007 (Exhibit A2), she states that she had known the applicant since 1993 and had “found him to be a good kid, but like every child his age he has had his ups and downs”. She states that she was shocked by the department’s “bad blunder” of informing the applicant of his visa cancellation but not informing his parents directly. She states that on the basis of the time she has spent with the applicant she has found him to be a very family oriented boy with a beautiful character, always willing to help anyone and never afraid to stand up for what he believes in. In her view the decision under review should be set aside.
The psychologist’s report
57. The applicant tendered a report dated 1 August 2007 by a consultant forensic psychologist, Mr Tim Watson-Munro, of Melbourne (Exhibit A6). The applicant also sought to tender a later supplementary report dated 6 August 2007, but it was excluded by operation of s 500(6J) of the Act. In any event it adds little of substance to Exhibit A6, and is based entirely on self-report by the applicant. As in the case of Exhibit A6, it appears that no psychological tests were administered and the report makes no attempt to estimate the risk of recidivism.
58. Exhibit A6 was based on a telephone interview lasting about 50 minutes conducted on or about 1 August, as well as discussions lasting about 30 minutes each with John and Mere Kelly.
59. Mr Watson-Munro thought that the applicant had a fairly unstable early life that had been compounded by his deafness, and that his symptoms reflected an adjustment disorder in accordance with DSM-IV criteria. He did not indicate what was the stressor that is required by those criteria.
60. The report noted that his time in custody, particularly in the HRMU, had been salutary for him and it had reinforced his resolution to undergo protracted treatment while under the care and supervision of his family in Melbourne. “Certainly should this man be deported to New Zealand he will be exposed to a very different environment which in my view will quickly undermine his current motivation. I say this advisedly on the basis of him being away from his primary care givers who appear to be both loving and very supportive of him, coupled to the likelihood of him then drifting in with his natural father who is evidently involved with the Mongrel Mob, a radical black separatist group in that country” (page 2).
61. If he were permitted to remain in Australia, Mr Watson-Munro would envision a broad regimen of treatment involving psychotropic medication, psychotherapy and some form of social skills training to help him communicate more effectively with others, and to teach him appropriate skills for dealing with frustration and anger. His employment had been of brief duration and he had used cannabis, alcohol and amphetamines over the years and was allegedly also involved with heroin. “He claims that there is a nexus between his substance abuse and his offending, although this would appear to be disputed at some level in the documentation I have read” (page 4).
62. The report noted that previously the applicant had frequently rejected opportunities available to him to overcome his problems, but thought there had been considerable improvement in his attitude to the need for treatment and that he was developing some insight into the nexus between his unresolved psychological condition and his offending.
63. His adoptive mother had told Mr Watson-Munro that the applicant is similar in nature to his natural father and said that she fears that if he is forced to return to New Zealand, “he will be at risk of drifting into gang-like behaviour” (page 5).
64. The report concludes that the applicant presents as a co-operative though clearly troubled individual, who has suffered a wide range of psychological problems reflective of a continuing adjustment disorder. The continuing nature of his condition, compounded by an absence of treatment, had no doubt led to the escalation of his criminal activities over the years.
65. On the other hand, when motivated for treatment he responds in a positive manner, but in the absence of continued supervision, quickly relapses. His motivation at the time of earlier relapses, however, was minimal, and in contrast with his now high resolution to continue with his psychotropic medication and to undertake ongoing therapy.
66. But if his appeal to the tribunal was not successful, “in all likelihood he may will [sic] drift into further antisocial behaviour through involvement with his [natural] father who has a well documented criminal history. Mr Kelly is insightful to this and fearful of this possible consequence” (page 7).
67. The report makes no attempt to estimate whether the applicant is at low, medium or high risk of re-offending.
The applicant’s submissions
68. On behalf of the applicant Mr Patch very properly conceded that the applicant failed the character test in s 501 of the Act and submitted that the appropriate course was to issue him with a warning of visa cancellation, because he had not previously been warned.
69. His criminal record lay in the middle range of seriousness and he challenged the allegations about the possession of a knife and involvement in stabbings at Silverwater, for which there was only skimpy evidence. He had worked hard for his C1 classification, and it made no sense that he would throw it away by keeping a knife in his cell.
70. As regards the risk of recidivism, he had previously been impatient, but after serving eight years in prison he had gained insight into his offences and, as the psychologist’s report attested, his attitude had improved. He had addressed his hearing problem and his family was supportive of him. In Melbourne he would be living in a stable environment in which he would be employed and would be undergoing counselling. He was not at high risk of re-offending, and although the possibility of some risk could not be excluded, it was much reduced.
71. Community expectations would be influenced by the hardship the applicant and his family would suffer from visa cancellation. He has been in Australia since 1993 and would suffer severe psychological disruption if he were removed. Most of his family in New Zealand are evil people who would harm him if he were thrown into their arms. It was a terrible, dangerous environment. His sister had said that there would be a 60 to 100 percent chance of his being murdered. He would be in danger anywhere in New Zealand and John Kelly had said that another gang would kill him in order to strike at his natural father.
72. The tribunal should thus consider, in accordance with paragraph 2.18 of Direction No 21, Australia’s international obligations. Returning the applicant to New Zealand would have the foreseeable result that his rights under Article 6 (right to life) or Article 7 (freedom from torture and cruel, inhumane or degrading treatment or punishment) of the International Covenant on Civil and Political Rights (ICCPR) would be violated. The prohibition of refoulement under the ICCPR is absolute. There is no balancing of other factors if refusal or cancellation would amount to refoulement under the ICCPR (Direction No 21, para 2.21).
The claim of personal danger to the applicant in New Zealand
73. A key aspect of the applicant’s case, and the focus of most of the evidence at the hearing, was that if he were returned to New Zealand, he would be, as he put it, “smashed up or shot”. His adoptive father John Kelly and his sister Tauna Pekepo predicted that if he refused to join his father’s gang, the Mongrel Mob, he would be severely injured and probably killed by Mongrel Mob members. Alternatively, the rival Black Power gang would hunt him down and kill him in order to hurt his father, because of his position as a leader of the Mongrel Mob.
74. The applicant himself did not claim that his father’s gang would kill him, saying only that he would be “cut off” by his family and thereby left at the mercy of Black Power, who would do away with him. John Kelly and Tauna Pekepo, however, were in no doubt that the Mongrel Mob themselves would do the deed, because they would not take “no” for an answer.
75. This evidence relates mainly to the other considerations referred to in Direction No 21, but it also has a bearing on community expectations and the risk of recidivism. Most of it cannot be relied on by the applicant by reason of s 500(6H) of the Act but, as is noted above (para 47), I think it appropriate to outline it in these reasons.
76. In evaluating the claim it is necessary to begin by noting that it is a very recent allegation that surfaced for the first time at the hearing. The applicant's own statements made in May 2007 make no mention of any personal danger he would face. His only reference to the criminal elements in New Zealand asserts, not that he would be the target of criminal violence from them, but that he would himself probably return to crime if placed in that environment (T p101).
77. His adoptive father’s statement made a week before the hearing states that there is more opportunity for the applicant in Australia than in New Zealand. He and his wife were concerned about crime in New Zealand but, like the applicant’s own statements, it is based on the concern that the applicant himself “would end up in the gang life” (Exhibit A7). Nor did Mr Kelly mention any danger to the applicant’s life in his telephone call to the department case officer on 8 May 2007 (T p110).
78. After relating the criminal activities of the applicant’s natural father, Sonny Smith, whom Mere Kelly says the applicant resembles, she warns that “If our son was [sic] to be deported we know exactly where he would head for” (T p113). Her letter to the department of May 2007 makes no reference at all to any fears for the applicant’s safety (T p102).
79. Tauna Pekepo herself, in her statement written the week before the hearing, stated only that the Mongrel Mob were waiting for the applicant to return to New Zealand to take over his father’s position while he is in jail and to begin their war with Black Power (Exhibit A5). She says nothing about any threat to his life from the Mongrel Mob or Black Power if he were to refuse to have anything to do with his father’s gang.
80. Further, there is no reference to any personal danger to the applicant in the statements of Zhanshada Pekepo (Exhibit A3) or Thomas Noa (Exhibit A4). Georgina Hunt who, as a Polynesian outreach worker, might be expected to know something of these matters, says nothing about gangs, crime, violence or physical danger (Exhibit A2).
81. Tauna Pekepo’s predictions are based in part on hearsay and in part apparently on pure speculation. All the president of the Mongrel Mob is actually claimed to have said to her is that the gang was awaiting his return in order to offer him “a patch” or territory, with nothing said about murdering him if he were to decline the honour. She then said that she had since heard that the gang wanted him to take over his father's position in order to start a war with Black Power, but again there was no reference to any adverse consequences if he were not to enlist for the fight.
82. She pointed out that her family before leaving New Zealand had experienced an “encounter” with members of the Mongrel Mob. But that had involved breaking into their house and stealing a few items, not physical violence or the threat of it. She stressed that their cousin had been fatally shot last July, but apparently because he was involved in gang activities, not because he was not.
83. John Kelly's support for the claim of danger to the applicant was based in part on what his daughter had told him, which makes it either double hearsay or simply the repetition of Tauna’s speculations. He also said, when asked why the applicant would face violence from the Mongrel Mob or others, that he did not know what to say and did not want to talk about such things. He was going on what his daughter had said and “just other things”. As the applicant has not been to New Zealand since 1993, his own predictions about the dangers he would face are similarly based on those unreliable sources.
84. Further, the allegations make little practical sense even on their own terms. It was not explained why the Mongrel Mob would need to await the applicant's return from Australia in order to start a “war”, nor why the Mongrel Mob would seek to kill him for failing to join their gang when he is the first-born child of their own vice-president. Conversely, it is not obvious why the rival Black Power gang would seek to kill him if he were not a member of the Mongrel Mob, when on the evidence given for the applicant they would be doing Sonny Smith a favour by dealing with his recalcitrant offspring.
85. None of the witnesses gave any examples of persons being killed or ill-treated for refusing to join a gang. The seeming assumption that the New Zealand authorities would do nothing to prevent gang murders of that type, or even a “war” in which “everyone would be slaughtered”, is rather belied by the fact that the applicant's father and half-brother are currently serving sentences for their roles in gang shootings. That the cousin or half-brother involved in shooting a Hell’s Angel is imprisoned at an undisclosed location for his own protection also shows that the authorities are taking preventive measures against gang violence. The applicant’s apparent refusal to say whether the shootings were fatal or not may suggest a motivation to exaggerate and dramatise the situation.
86. If the applicant’s lurid portrayal of New Zealand as a kind of war zone corresponded with reality, one would expect to see it corroborated by the kinds of country information reports from the Department of Foreign Affairs and Trade or the US State Department that are commonly used before the Refugee Review Tribunal. But no such reports are in evidence. Mr Patch submitted that although there were no official reports, there was better evidence in this case from the three witnesses mentioned. For the reasons given, however, I cannot accept that evidence as true. I can only conclude that it is a recent concoction of hearsay, fiction and urban myth.
Application of the Law and Findings of Fact
87. As was stated above, normally the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
…
88. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
89. If the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
90. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(6)(a) and (7).
91. I must therefore consider whether to exercise my discretion under s 501(2) to decide, nevertheless, whether not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
92. Paragraph 2.3 sets out the primary considerations:
…
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
93. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
94. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
95. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. .In this case the applicant has been sentenced to imprisonment for between 12 months and five years for offences of actual or threatened violence on three separate occasions, the most recent being on 15 June 2005 when he was convicted of assaulting a law enforcement officer (not police) inflicting actual bodily harm. On that occasion he was sentence to imprisonment for two years, which was reduced on appeal to 12 months.
96. No charges were ever laid in relation to the alleged stabbings at Silverwater. The applicant has given a plausible explanation in relation to those allegations and there is nothing in the evidence to contradict it. Although his explanation does not extend to the stabbing at Lithgow, I think it appropriate to give him the benefit of the doubt in relation to all those allegations. In any event, his sentences to terms of between 12 months and five years, quite apart from all his other sentences, are more than sufficient for his record to be regarded as very serious.
97. The next issue for the tribunal to consider is the risk of recidivism. The applicant has offended and re-offended from the age of 14 until 2005, when he was sentenced for assaulting a corrections officer inflicting actual bodily harm. There has been no substantial break in his record of criminal violence. In his sentencing comments on 23 June 2000, Judge Nield observed that “it is obvious that the prisoner has learnt nothing whatsoever from his previous convictions and the sentences imposed upon him for his previous offences” (G p86).
98. His Probation and Parole Service Pre-release Report of 5 March 2004 did not recommend release on parole (G pp42-43). The report noted that when he was classified as a B security rating in 2000, he was transferred to Windsor Correctional Centre to give him the opportunity of taking part in Young Offenders’ programs. But after he had been at Windsor for only two months, he was accused of standover tactics against other inmates and being abusive to staff. He was therefore transferred to Goulburn where he spent the next 11 months.
99. During his second stay at the Goulburn HRMU, his performance “fluctuated”: “He complies with routine for a while but then reverts to being abusive to staff and to disregarding reasonable directions. Staff agree that the inmate has not yet merited consideration for a transfer out of the HRMU” (G p39). After that report was written, he violently assaulted the corrections officer on 3 April 2005.
100. A further report on 20 October 2005 found that the applicant had made great progress in the area of communication, which “may be attributed, in some degree, to the acceptance of his having a hearing problem and the addressing of this issue” (G p47). But his assault on a prison officer showed that his impulsive and violent behaviour was still problematic. Release on parole was not recommended.
101. Another report, dated 24 November 2005, noted that on 17 November 2005 the applicant had orally abused an officer when he was asked to stop sparring with another inmate and also refused to attend an arranged interview with the parole service unit leader on 24 November 2005. That precluded any discussion with him about current issues. He was considered unready for parole at that stage (G p50).
102. A supplementary report dated 5 October 2006 stated that the applicant declined to be interviewed for the preparation of the report and said he did not wish to be considered for parole. While he was generally compliant, he did not choose to participate in any programs except Education and on 21 July 2006, was charged with intimidation. Again, his release was not recommended (G pp51-52). The reports conclude that the applicant rates as at a high level of risk of re-offending (G p46).
103. The psychologist’s report (Exhibit A6) is based on self-report by the applicant in the course of a telephone conversation, together with two half-hour interviews with Mr and Mrs Kelly respectively. After detailing his history, Mr Watson-Munro expressed the view that there has been a considerable improvement in the applicant’s attitude to the need for treatment and that he appeared to be developing some insight into the nexus between his unresolved psychological condition and his offending. He concluded that the applicant is a co-operative though clearly troubled individual who, when motivated for treatment, responds in a positive manner. On the other hand, in the absence of continued supervision he has in the past quickly relapsed. But the support of his parents and the availability of employment would improve his prospects for making progress.
104. Mr Watson-Munro did not administer any tests to the applicant and made no attempt to estimate whether his risk of recidivism was low, medium or high. Consequently, the only available estimate is that of the Probation and Parole Service, which relates his recidivism risk as high.
105. One of the reports expressed the opinion that his progress at Goulburn could be attributed in some degree to his acceptance that he has a hearing problem and to his addressing of that issue (G p47). But he came to the tribunal without any hearing aid of any kind. Special arrangements had to be made with the registry for a pair of earphones to enable him to use the courtroom hearing loop.
106. He does have an offer of employment from his uncle Mr Noa, but his sister Tauna thinks he will have a difficult time holding a job. He himself states that he has had “minimal employment in Australia” (G p127). He dismisses without discussion the possibility that he might be able to obtain employment in New Zealand.
107. He states that if he were to return to New Zealand he “would have no other option” than to engage in gang activity “as that is the only people I would know there” (G p128). He notes that his family and associates in New Zealand include criminal elements “and I foresee that this will contribute greatly to my re-offending in New Zealand if I am deported” (G p101).
108. The applicant thus appears to be using the threat of re-offending as an argument for being released into the Australian community. That is hardly a position that would be taken by a man who is rehabilitated and reformed. At the hearing his active participation in an almost grotesque attempt to mislead the tribunal (paras 73-86 above) points in the same direction. In my view the applicant’s risk of re-offending is at least moderate and probably high.
109. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
110. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
111. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
112. Mr Patch submitted that the direction’s reference to general deterrence was “empty rhetoric” lacking any factual or research basis. There is, however, empirical evidence to support the deterrence principle (see Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 at para 31; Re Green and Minister for Immigration and Citizenship [2007] AATA 1410 at paras 96-97). Affirming the decision under review in this case would send a clear message to other non-citizens contemplating criminal violence.
Expectations of the Australian Community
113. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
114. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
115. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that “it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community” (219 CLR at page 632).
116. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
117. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).
118. In this case there can be little doubt that the community would expect that the applicant’s visa should be cancelled, particularly in view of the very serious nature of his violent criminal conduct. As the tribunal observed in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81:
…
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia (at 132).
…
The Best Interests of the Child
119. It was not suggested that there was any child whose interests had to be considered under this heading.
Other considerations
120. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
121. The applicant's adoptive parents and some of his siblings reside in Australia, although it appears that he has larger numbers of siblings, as well as his natural parents, in New Zealand. Nevertheless, it may be accepted that cancelling his visa would cause disruption and emotional hardship to his Australian family.
122. As against that, he has spent a significant part of time in Australia in jail, including the past eight years, and was separated from his family for that reason. In addition, his parents moved to Melbourne in 2001, and by that choice made it more difficult to maintain contact with him. If he were removed to New Zealand, they would still be able to remain in touch with him by telephone, webcam and periodic visits.
123. The applicant has no business or other links with the Australian community. Although there are signs that his attitude to seeking help and treatment have improved, progress towards rehabilitation has been very limited and he is regarded by the parole service as at high risk of re-offending.
124. It may be that he is a Cook Islands citizen and as such entitled to live in that country, but there is insufficient evidence to justify a finding on that point.
125. He is not in a marriage or de facto relationship with an Australian citizen or permanent resident.
126. There is no reason to doubt that in New Zealand he would have access to community services of at least the same standard as are available in Australia. He is healthy and physically fit. His flat assertion that it would be impossible for him to find work in New Zealand is unsupported by evidence and cannot be accepted.
127. The seriousness of his offences and the lack of evidence of rehabilitation make the fact that he has not previously been warned of the possibility of visa cancellation of little significance.
128. For the reasons given above, I cannot accept that in New Zealand he would face a real risk of violation of his human rights within the meaning of the ICCPR.
129. The primary considerations of community protection and expectations clearly outweigh the other considerations in this case. The decision under review is affirmed.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ..........................[sgd].............................................
R Wallace, AssociateDate/s of Hearing: 7 August 2007
Date of Decision: 20 August 2007Solicitor for the Applicant: Ms Abigail Bannister, Bannister Kyriacou Nasser
Counsel for the Applicant: Mr David Patch
Solicitor for the Respondent: Mr Tigiilagi Eteuati
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