Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs - [2005] AATA 142

CATCHWORDS – IMMIGRATION – visa – cancellation – character test – failure of character test – whether discretion should be exercised to cancel visa – protection of Australian community – expectations of Australian community tempered by circumstances – best interests of children – whether best interests of grandchildren a primary consideration – decision set aside.

Migration Act 1958 ss. 31(1), 31(2), 31(3), 34, 499, 501(2), 501(6), 501(7), 501(12) and 501G
Migration Regulations 1994 Schedule 2 rr. 1.03 and 2.12A

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Re McKay and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861
Taylor v Minister for Immigration and Multicultural Affairs [2004] FCA 181
Re Williams and Minister for Immigration and Multicultural and Indigenous Affairs [1999] AATA 672
Re Johnson and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 304
Re Koudinova and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 399
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
re Sutton, Boscawen v Wyndham [1920] 1 Ch 257
R v Jabaltjari (1989) 64 NTR 1
Re Peter and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585
Re Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100
Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] 1054
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

DECISION AND REASONS FOR DECISION [2005] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2004/1308
GENERAL ADMINISTRATIVE DIVISION     )

Re SONNY VICTOR PATRICK OTENE

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  15 February 2005
Place:  Melbourne

Decision:The Tribunal:
1.sets aside the decision of the respondent dated 12 November 2004; and
2.substitutes a decision that the applicant’s Absorbed Person’s Visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President

REASONS FOR DECISION

A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”), cancelled the Absorbed Person’s Visa (“visa”) held by the applicant, Mr Sonny Victor Patrick Otene. He did so on 12 November 2004 after concluding that Mr Otene does not pass the character test under s. 501(6) of the Migration Act 1958 (“Act”). I have also decided that Mr Otene does not pass the character test but have decided that the discretion inherent in s. 501(2) should be exercised in his favour. Consequently, I have set aside the Minister’s decision and substituted a decision that Mr Otene’s visa not be cancelled on the basis that he has failed the character test pursuant to s. 501 of the Act.

At the hearing, Mr Otene was represented by Mr Hughan of counsel and the Minister was represented by her solicitor, Mr Brereton. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as to written statements by Mr Otene, Mrs Amanda Otene and Ms Connie Otene, letters by Mr Gerard O’Neill, Mr Terry Bausch, Mr Robert Otene, Ms Rickie-lee Bausch, Ms Amanda Otene, Mr Terry Bausch (Junior), Mr Ken Jackson, Mr Dominic Sorbara, Mr Danny Stone and Ms Danielle Paton, an editorial from The Age dated 11 December 2003, copies of certified extracts from records of the Magistrates’ Court concerning Mr Otene, letters from the Department of Immigration and Multicultural Affairs to Mr Otene dated 20 and 30 November 1998, a file note by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) dated 19 October 2001, a letter from the New Zealand Police to the Department dated 3 July 1998 and a letter by Mr Otene to the Department dated 24 March 2003 with annexures. Mr Otene gave oral evidence in support of his case together with his wife, son, Mr Bausch and Mr O’Neill.

ISSUES

As Mr Otene does not pass the character test set out in s. 501(6) of the Act because he has a substantial criminal record, the only issue in this case is whether the discretion in s. 501(2) should be exercised to cancel his visa.

BACKGROUND

In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide. I have made those findings based on the evidence to which I have referred above and in light of the lack of controversy between the parties about them.

Mr Otene’s life in New Zealand

Mr Otene was born in New Zealand on 30 July 1960. His parents already had four children and did not want a fifth. Consequently, they arranged for him to be adopted by his mother’s sister, Mrs Marree Otene, and her husband, Mr Richard Otene. His adoptive parents already had three children of their own. Mr Otene completed Form 5 and worked as a milk and paper delivery boy while he was still at school.

Mr Otene’s employment in Australia until he committed trafficking offences in 1994

Mr Otene moved to Australia in 1977 when he was 16 or 17 years of age. He stayed with his older sister, Ms Susan Hannon, and her husband for a year or so. Two days after his arrival, Mr Hannon found a job for Mr Otene as a nightshift worker in the cool storage facility managed by BJ Ahern Pty Ltd and he never attended school in Australia. During the three or four years that he remained with BJ Ahern Pty Ltd, Mr Otene obtained his forklift licence and his heavy articulated vehicle driver’s licence. He thought that these qualifications would expand his opportunities to gain employment in the future.

In 1980, Mr Otene and other employees at BJ Ahern Pty Ltd were made redundant. Mr Otene found other employment with W & B Blake Transport. As part of his duties, he obtained a crane driver’s licence and was able to gain additional work at the weekends. After the closure of W & B Blake Transport in late 1982, Mr Otene was employed as a truck driver by Regal Cream Products Pty Ltd trading as Bulla Dairy Foods. He had made a lot of friends at Bulla Dairy Foods and left its employ only because he was offered good money to drive interstate. The offer was made by B & J Transport Pty Ltd. At the same time, Mr Otene subcontracted for the Amoros Transport Group and JVR Transport. He was well regarded as a trustworthy and dedicated overnight express driver who always delivered the freight on time and in good condition.

On 5 December 1985, Mr and Mrs Otene formed a company, Morechest Pty Ltd, and began a business as cartage contractors. Mrs Otene was responsible for the books and the administration and Mr Otene drove with assistance from other drivers employed on a casual basis. They operated the business until 1989 undertaking deliveries in the Melbourne metropolitan area as well as Victorian and interstate deliveries. Interstate deliveries were undertaken for Arvee Freighters Pty Ltd and Expressway Transport Services Pty Ltd.

Due to the recession, Mr and Mrs Otene were no longer able to continue their business. Mr Otene then worked with Roxton Transport as the warehouse manager. He organised the company’s daily operations ensuring that all vehicles were loaded with the correct freights and that the trucks were not overloaded. Mr Otene undertook that work for about a year and then returned to work as a driver with the Amoroso Transport Group. From 1995 until 1997, he worked as a forklift driver with Visy Paper Pty Ltd (“Visy”).

Mr Otene’s family life

In late 1977, he met Ms Diane Brown. She was a single mother of two daughters, Amanda and Michelle. They were then aged four and two. The children’s father did not pay maintenance for them and Ms Brown managed alone with the help of her sister, Ms Linda Brown. The only time that their biological father tried to contact the girls was in December 1979. They refused his gifts and he has not tried to contact them again.

Mr Otene took Ms Diane Brown and her daughters on outings and the relationship developed. He fell in love with Ms Brown and became very close to her daughters. They remain very close to this day and Amanda and Michelle know him as their father and refer to him as “Dad”. Mr Otene regards them as much his children as the children of his marriage. On 1 May 1982, Mr Otene and Ms Diane Brown were married. Their daughter, Connie, was born on 6 March 1983 and their son, Robert, on 6 September 1985.

Mr Otene has been very involved in the life of his family and they in his. When he and his wife operated their own business, the children helped by, for example, washing and polishing the truck. They ensured that their children had the opportunities to receive a good education. Mr Otene was engaged in his children’s activities. He always attended his three daughters’ dance concerts, took his son to football games and went with all his children when they played sport. When his son was six and began to play football with a club, Mr Otene was approached to be a member of the club’s committee. In that role, he was involved in organising sale of the club’s merchandise and fund raising functions. Even though his work took him away from home, Mr Otene ensured that he was home at the weekend to be with the children.

Ms Amanda Otene has two daughters: Paige, who is a child of her former marriage and who is now aged 12 years; and Ella, who is a child of her present relationship and who was born on 6 September 2004. Ms Michelle Otene and her partner, Mr Daryl Favalaro, have two children; Chelsea aged 5 and Chloe aged 3. Chelsea suffers from epilepsy and has been hospitalised as a result on one occasion. Ms Connie Otene and her partner, Mr Matthew Pannis, have one child, Holly, who is a year old.

Mrs Otene’s brother in law, Mr Ray Williams, was killed while Mr Otene was in prison. He had been close to Mr Otene’s children and especially so while Mr Otene had been in prison.

Mr Otene’s convictions

Mr Otene has been convicted of the following offences:

Court	Date of Conviction	Date offence committed	Charge	Result
Magistrates’ Court (Northcote)	11 September 1979	Assault occasioning actual bodily harm	Convicted and fined $300; in default one month’s imprisonment
Magistrates’ Court (Preston)	18 November 1992	Breach Intervention Order	Convicted and fined $200

Magistrates’ Court (Preston)	17 February 1994	16 November 1992 17 December 1992	Intentionally damage property Possess pistol or imitation without a licence Possess unregistered firearm Possess a drug of dependence Intentionally damage property Assault police/person assisting police Fail to answer bail	Convicted Convicted Convicted Convicted Convicted Convicted Convicted Aggregate order made in respect of all above convictions: fined $400. Stay to 10 September 1998
Magistrates’ Court (Melbourne)	12 January 1995	Fail to answer bail Possess amphetamine	Convicted and fined $500 Convicted and fined $250
County Court (Melbourne)	8 May 1997	4 -10 October 1994 11-17 October 1994 17 October 1994	Traffick amphetamine Traffick amphetamine Possess amphetamine Possess cannabis	Convicted; 6 years’ imprisonment Convicted; 6 years’ imprisonment (3 cumulative on sentence on Count 1. Convicted; 2 years’ imprisonment Convicted; fined $100 Effective sentence: 9 years with a non-parole period of 7 years. Orders for forfeiture and disposal of drugs.
Magistrates’ Court (Melbourne)	10 September 1998	16 November 1992	Breach of order regarding above convictions on 17 February 1994	In default of payment of unpaid amounts totalling $400, to be imprisoned for 4 days

Courses completed in prison

During his imprisonment, Mr Otene completed the following courses or programmes:
Certificate of Completion on successful completion of a 12 hour Drug Education Program: “Life Choices” presented by Caraniche Pty Ltd (“Caraniche”) on 19 November 1997;
Pursuit of Excellence presented by CORE – the Public Correctional Enterprise on 20 November 1997;
Certificate of Completion on successful completion of 12 hour Drug Education Program: Life Choices - #4/98 presented by Caraniche on 29 July 1998;
Drug Treatment Program presented in ten sessions over February and March 1999 by Caraniche at Barwon Prison (“Barwon”). The programme was designed to encourage:
“… participants to explore a range of issues related to drug use in an atmosphere of positive regard and encouragement. The program is relatively unstructured to allow each group member the opportunity to drive the direction of the group if they choose and it is within appropriate boundaries. The program ran for a total of 20 hours and in addition all participants engaged in 4 individual counselling sessions.” (G documents at G12)
The Caraniche representative commented on Mr Otene’s participation in the programme and his future needs:
“Sonny participated well in the program and was willing to contribute on issues that were personal in nature.
…
Sonny would benefit from participation in a course of individual counselling rather than from more group programs. Such counselling should address issues that may arise on his release into the community.” (G documents at G12);
Certificate of Completion on successful completion of 24 hour Drug Treatment Program presented by Caraniche on 15 March 1999;
Certificate of Completion on successful completion of 16 hour Relapse Prevention Program presented by Caraniche on 15 April 1999;
Certificate of Attendance at The Aspects of Life After Prison (an eight by two hour discussion group) with topics including Making Your Incarceration a Positive Experience, Pitfalls to Encounter Upon Release, Using Community Facilities for Support and The Mechanics of Developing a Pro-social Life;
Certificate of Completion in Relapse Prevention for completion of 16 hour programme conducted by Caraniche on 23 March 2000;
Certificate of Completion in Consequential Thinking (A life choices program) (a 12 hour program in consequential thinking conducted by Caraniche) completed on 18 July 2000;
Certificate of Completion of a 12 hour programme including effects of substance abuse, harm minimisation and relapse prevention completed on 21 December 2000; and
Certificate of Completion of a 4 hour programme including goal setting, relapse prevention, self esteem and life style change completed on 23 February 2001. (G documents at G12)

Mr Otene was congratulated on behalf of the Bendigo Regional Institute of TAFE in May 2003 after he had catered for a meeting of education professions on its campus. He was praised for the high standard of presentation of the food, his excellent choice of food and his attention to detail such as the dietary requirements of those attending the meeting.

Employment since his release from prison

Since he was released from prison, Mr Otene has worked for both Serge’s Loading Agents and Kwiktrans Pty Ltd (“Kwiktrans”). On the basis of Mr Otene’s evidence and a letter from Mr Danny Stone, the National Operations Manager of Kwiktrans, I find that Mr Otene’s position has been held open for him. Kwiktrans had previously had several unsuccessful attempts to fill the position but have found the right person in Mr Otene. It is so impressed with his work that a promotion to Branch Manager of its Queensland operation is on offer.

Parole

As at 31 January 2005, Mr Otene had complied well with his parole and had fulfilled his obligations to date.

THE EVIDENCE

Mr Otene’s family and his life before coming to Australia

Mr Otene said that he has always been very hurt by his parents’ actions in giving him away as they went on to have two further children whom they kept. Over the years, he did not have much of a relationship with his biological mother or his biological siblings. He saw very little of his biological father. Only once when his father was drunk did he try to have contact with Mr Otene. Whenever he saw his biological family at family functions, Mr Otene felt that they continuously teased and taunted him. He felt that he was seen as the ugly duckling of the family. The reaction of his biological family played so much on his mind that he felt unloved and unwanted.

Mr Otene has Maori heritage but he:
“… hated the lifestyle of the Maori culture. I hated the violence, the alcohol and the abuse, the beatings and the bashings my sisters and cousins copped from their husbands. From the age of 10, I would watch this kind of lifestyle. My sisters were a lot older than me. I knew what was going on and I hated it. Just before I arrived in Australia, I remember I was angry at my brother-in law because he gave my sister a hiding. I would also remember seeing my mum with black eyes. I felt helpless as I was not able to do anything to stop the abuse. My childhood was like that. …” (G documents at G7)

As a result of his adoption and of the violence, Mr Otene said that he wanted to get away from his situation. His feelings were intensified by his being sexually abused by an older man. The first incident occurred when he was about 8 years of age. After that, his adoptive mother would drop Mr Otene off at the man’s house so that she and her friends could party. The abuse continued. Mr Otene described the abuse to Mr Foglia and from his report, it appears that the abuse continued until Mr Otene was ten or 11 years of age.

Mr Otene said that he reacted by not going to school but would talk with his older sister, Ms Susan Hannon. She was in her late 30s at the time and lived in Australia with her partner, Mr Gerald Hannon. His sister and brother in law decided that he should move to Australia and live with them.

Mr Otene said that his adoptive father died in his arms in 1982. He had returned to New Zealand to see his father who had been too ill to travel to Australia for Mr Otene’s marriage. In his report, Mr Foglia, Counselling Psychologist, set out Mr Otene’s description of:
“… his adoptive father as a violent alcoholic. He further depicted his father as an emotionally distant man who ‘liked to drink’ and who, when drunk, had the tendency of physically abusing the rest of the family. Mr Otene recalled he ‘did not like the fights’ at home, and as a child ‘felt threatened’ by his father’s outbursts of violence. He described that his parents would regularly participate in ‘parties that involved lots of alcohol and violence’ and recalled growing up ‘hating the New Zealand way of life and the Maori culture’.” (G documents at G11)

His adoptive mother died in 2002 while he was in prison. Mr Otene was saddened to think that he did not get to thank her for being a loving and caring mother who supported him when he was upset by his biological family. He had described her in similar terms to Mr Foglia. He had also told Mr Foglia that he had made a short trip back to New Zealand to visit his adoptive parents with whom he had remained in contact.

Convictions for offences prior to 1997

Mr Otene has no convictions in New Zealand and there are no outstanding matters against him. He has convictions for offences prior to 1997 in Australia. Judge Crossley said of them:
“… You have admitted before me the prior convictions. There are eight such convictions involving two court appearances in 1992 and 1994. The nature of these prior convictions is such that they are not particularly relevant to my task of sentencing you today, save, perhaps, that they demonstrate to some extent an anti-social attitude. They are comparatively minor, however, when looked at and compared with the seriousness of the matters for which you now stand convicted before me.” (G documents at G14)

In giving evidence, Mr Otene explained the circumstances of his previous offences. The first occurred outside a pizza shop when a man who was intoxicated knocked him to the ground. As he was getting off the ground, the man put down his pizza and came towards him to start a fight. Mr Otene said that he defended himself. He later heard from the owner of the pizza shop that the police were looking for him and so went to the police station himself. Mr Otene was told that the man had a black eye and blurry vision.

The offences in 1992 arose out of a domestic situation with his wife. He was tired and things were not going well. Accounts were not being paid and he was waiting on money. The mortgagee wanted to repossess his truck. He and his wife had an argument and the neighbours called the police. At the suggestion of the police, he said, his wife took out an Intervention Order (“IO”) against him. In cross-examination, Mr Otene said that he “lost it” at that suggestion and flared up. He was handcuffed. When he was taken to the police station, he was hit by a policeman with a baton and he retaliated. They were separated for two or three weeks. During that time, he breached the DVO as he had not realised that he could not go home alone to get some clothes. They were reconciled.

Mrs Otene also spoke of the events leading to her husband’s convictions at this time. He was away a lot at the time and working longer and longer hours. There was a lot of pressure on him and they had a lot of arguments. He was sleeping very little and at home for only half a day each week. Even when he was home, he used his time either to work on his truck or to snooze. She did not seek an IO immediately but she had approached both her doctor and the police as to whether she could get her husband any help. At the time, she was very concerned for his psychological well-being. She tried to discuss the situation with her husband but he was not open to discussion. Mrs Otene said that she had no control at all over husband; “he was completely out of it”.

Mrs Otene sought help from her doctor and from the police. Her doctor told her that her husband would have to go to him himself and the police said that they could not do anything if he did not commit an offence. She thought that if there were an IO against him, he would breach it and so commit an offence. Psychological help would then be available to him as he would have to be psychologically assessed. As things were, she was unable to discuss anything with him as their discussions would turn into violent arguments. At the time, she thought about leaving him and taking the children but she had nowhere to go.

The firearms in relation to which he was convicted in 1994 were an imitation pistol and a 45 pump action shotgun for which he had let the registration expire. He had bought the imitation pistol from a shop because he “thought it looked nice”. Mr Otene said that he had never used the guns.

The circumstances of the trafficking offences and Mr Otene’s role

In his sentencing remarks, Judge Crossley said of the offences:
“ These crimes arise out of events which occurred at Qallan and Yarrambat in October of 1994. You were a major player in the Victorian distribution of very large amounts of amphetamine which had been manufactured by others in Queensland. When I refer to you as a major player I add that I do accept that you were not the leader or master-mind of the operation. You were clearly, however, a senior member of the group and played an important role.
The value of the drugs involved on Count 2 was, according to the evidence in the trial on a retail basis, $13,761,444 or, perhaps, more realistically on a wholesale basis, $1,218,000. For those figures alone demonstrate that this is a serious case, indeed. The drugs being distributed by you were dangerous and had the potential to lead to the most deleterious effects on the intended customers or users on the street. The quantity was vast. I am told that it was the largest amphetamine seizure in the history of Victoria.
Your counsel has submitted that you received no reward for your part in the distribution of the drug. I do not know if that is so or not, but I certainly do sentence you on the basis that you did what you did in the expectation of very considerable profit. As has been pointed out by your counsel, there are, however, some mitigating factors. I am prepared to accept that, in the words of your counsel, you were seduced by another or others to participate in the operation. Your seduction, was, however, effected by your being offered not inconsiderable reward.” (G documents at G14)

On appeal, Brooking JA, with whom Winneke ACJ and Buchanan JA agreed, described the background to Mr Otene’s offences in a little more detail:
“ The charges against him arose out of a joint investigation by the Victoria Police and the National Crime Authority into a large-scale amphetamine manufacturing and distribution network, which had extended from Victoria into Queensland. In all, about a dozen persons were charged, all but three of them being dealt with in Queensland. In February 1995 a huge quantity – 180 kilograms – of amphetamine was seized at a clandestine laboratory in Queensland. In the latter part of 1994, various sources of police intelligence had suggested that one Gary David Maguire was responsible for the distribution in Victoria of amphetamine produced at the Queensland laboratory, and in September and October 1994 many of the applicant’s telephone conversations were, as I have said, monitored. In May 1995 a man named Vinall pleaded guilty in the Supreme Court in Brisbane to trafficking in amphetamine. He was sentenced to 12 years’ imprisonment and was given a non-parole period of only 5 years in view of his co-operation with police in respect of his co-offenders and his undertaking to give evidence in subsequent proceedings. Maguire came before the judge who sentenced the applicant, pleading guilty in February 1998 to one count of possession of cannabis. He was sentenced in July to 15 years’ imprisonment on count 1 and six months on count 2, giving a total effective sentence of 15 years, a minimum term of 8 years being fixed.
Vinall was called by the Crown on the joint trial of the applicant and one Stewart John Smith. Smith was charged with one count of trafficking, being the second of the two trafficking counts against the applicant. He was acquitted, although the endorsement on the presentment does not record this acquittal, recording only his conviction after a plea of guilty on a count of possession of a small quantity of cannabis.
Vinall gave evidence that in October 1994 he was engaged in the manufacture of amphetamine in Queensland with Maguire and others and that Maguire was distributing the drug into Victoria. He said that early in October 1994 he drove from Queensland to Maguire’s home with 16 pounds of amphetamine packaged in snap-lock bags and that on arrival he gave 10 pounds of the drug to Maguire, who telephoned the applicant. The applicant came to Maguire’s home and, having tested the product and found it to his satisfaction, departed with the 10 pounds. Vinall had met the applicant about a month earlier, when a trailer was hired to move amphetamine manufacturing equipment from Maguire’s home to the Queensland laboratory. The 10 pounds received by the applicant from Maguire gave rise to count 1.
Count 2 concerned a much larger quantity. Vinall and Maguire wanted to have 22 kilograms of amphetamine brought from Queensland to Victoria. It did not suit them to undertake the journey personally and so the applicant first tried unsuccessfully to arrange for a particular truck driver to do the job. He then made successful arrangements for another driver to bring in the drug, and as a result he himself took possession of it (packed in two fire extinguisher boxes) and took it to his home in Yarrambat, where he set about repackaging it. The following afternoon, 17 October 1994, the police raided his home and seized 15.839 kilograms of amphetamine. The other six kilos or so must have already been distributed by the applicant. The telephone intercepts show that a number of people were urgently waiting on him to supply them from the 22 kilos which he received on 16 October. A number of visits were made to his home in the hours preceding the raid. Seized in consequence of the raid, in addition to the 15.839 kilos of the drug and equipment and bags for repackaging it, were two handguns, one of them loaded.
So far I have been speaking in terms of substance rather than drug. What I have described as 15.839 kilograms of amphetamine was of a purity of 72.4 per cent, giving a weight of pure amphetamine of about 11 kilograms. A commercial quantity was two kilograms. The value of the seized drug was estimated to be in excess of $1.2 million if sold in pound or half-pound lots. The Crown case was that sales in those quantities were actually occurring and in contemplation. The estimated street value was $13.7m. if the drug was reduced to street level purity (five per cent) and sold in gram lots. The judge was told without objection that the seizure from the applicant was the largest seizure of amphetamine in Victorian history, not only down to the date of the seizure itself but down to the date of the plea.” (G documents at G14) (Otene v The Queen [1998] VSCA 92)

In a statement, Mr Otene explained how he has come to see his behaviour at the time of the offences:
“… I have learned so much over the past seven years. It has taken me a lot of soul searching to realize my flaws and try to change. I have always been a social and infectious person. I always wanted to be part of the main group. It took me a jail sentence to realise that I could resist this social pressure. I would do anything my friends. I discovered all this during one of the sessions I had with my counselor [sic]. I realised that I could say No to friends. I had a problem saying No. I wish I could have said No to my friends then. I have seen all the heartache I put Dianne through. She is the backbone in my life. Maybe this is why I neglected her. My blinkers were on and I had no idea what I was doing. At one stage, I was only getting nine hours sleep per week. I used to leave home Sunday night and come home Friday. I would eat, sleep and dream about trucks. It was another world back then.” (G documents G7 at [27])

In cross-examination, Mr Otene agreed that he had told his wife before they were married that he was totally against drugs; if she were to become involved with them, he would leave the marriage. Before he went into the transport industry, he said, he was entirely against drugs. His sister, Angela had used them and he would see how they affected her when she would visit him. He became involved when he started to drive interstate routes. When he began to use amphetamines, he suffered mood changes but did not realise the effect they were having on his body and his family.

In cross-examination, Mr Otene denied that he had a network of buyers to whom he sold drugs. Rather, apart from a couple of people to whom he sold drugs, he took drugs to those people to whom he was told to take them. He became involved because he was about to lose his business and he went off the rails. When asked if he sold the drugs to make money, he said that he did so to get his business back on track. He began with delivering an ounce here and an ounce there. He would be paid with an ounce for himself. Occasionally, he would sell an ounce that he received. He was to be paid but then they were “busted”.

Mr Otene did not see what he did as distributing drugs into the community. He saw it as a way of getting back into business and doing so by delivering drugs to people to whom he was told to deliver. When asked if he had any responsibility to the end users, he replied “Of course I do” but, at the time, he had no such concern.

Mr Otene agreed that he was repackaging the drugs into smaller packages when police raided his home. The police raid was on a Monday and he had picked up the drugs on the previous Sunday night. It was the first time that he had taken drugs to his home, he said. The family was not at home when he started re-packaging but they came home during the police raid. It was the first they knew of his activities. He had planned to have the drugs re-packaged and out of the house before the children came home but the police raided at about 3.00pm. Mrs Otene said that the drugs were not in the house as such but in a separate flat or unit on the property. The flat had a gym room but the children and she did not use it.

Although his wife was the bookkeeper of his business, Mr Otene said that he never had to explain any influx of money because he did not receive any payment for his drug trafficking. He had no plan as to how he would explain the money he had expected to receive. As it was, he received nothing and she knew nothing.

The guns that he had in 1997 and in relation to which he was convicted had been given to him in payment for work he had done. He kept one, which was loaded, on top of an elevated cistern in the bathroom of his house and the other was in his bedroom. Mr Otene said that he had never used them in relation to trafficking amphetamines and never carried them. He could not explain why one of the guns was loaded and supposed that it had been in the bathroom for four or five months. Mr Otene agreed that a loaded gun was a fairly significant thing to keep in the house. He had kept it on the top of the cistern as the children would not see it there. Mrs Otene said that she was not aware of the drugs or of the guns in the house. At first, she thought that the police had planted them because he did not have guns but she now knows that they were not planted.

In cross-examination, Mr Otene agreed that he had pleaded not guilty to the offences. He later said that he had immediately told his wife that he was “in the shit” and she had been broken hearted.

Mr Foglia noted that Mr Otene had started using amphetamines when he was 22 or 23 to keep awake at work. Other truck drivers had introduced him to them. He estimated that he used, on average, ¼ of an ounce or 7 grammes each week. His wife had noted that he was “agro or grumpy’ but Mr Otene said that he never became abusive due to the effects of substance abuse. Despite his view, he was open to the suggestion that he was dependent on amphetamines but maintained that he only used them when he was on the road. He had the vision that if he wanted to provide his children with the things that he never had and if he wanted to provide them with a secure future, he had to better himself financially. At the same time, he was affected by the recession and presented a bankruptcy petition. It was at this time that he became involved in trafficking, He told Mr Foglia:
“Mr. Otene stated that around this time, some friends and colleagues talked him into drug trafficking as a means of making money. He perceived the offer as an opportunity to accomplish his objectives and decided to get involved. Evoking this decision, he conceded was driven by his inability to say no and greed. He described his involvement in the drug scene as somewhat brief, being in business for approximately ‘twelve months’ and perceived himself as ‘small fish in a big pond’. However he acknowledged his participation was substantial and his degree of responsibility quite considerable. Mr. Otene reported being involved in the ‘transportation and selling of commercial quantities’ of amphetamine. He indicated that while he kept ‘snorting’ amphetamine he ‘never increased [his] use’. He reported that upon being charged by the police, he stopped substance use and, ‘never used’ illegal drugs again. Thinking back, he stated, ‘Being a drug dealer made me feel important’.” (G documents at G11)

Mrs Otene did not regard her husband’s activities as putting drugs into the community. He delivered them only to those in the trucking industry who needed to stay awake and did not sell them to kids or people on the streets. When it was suggested to her that using amphetamines in the trucking industry was dangerous, she agreed but added “so is dozing”. She said that she did not condone the use of amphetamines after what they have put her family through but there is a place for it. At the same time, when asked whether the offence her husband had committed was a serious offence, she replied “Of course it is; even a fraction of it would have been”.

The rationale of Judge Crossley’s sentence

In sentencing Mr Otene, Judge Crossley said:
“… I do not sentence you, as I think I have already said, as the principal offender in the matter. It would appear that you were a medium level to senior participant and were not the principal offender. However, you did perform the very important function of what might be described as the Victorian Distribution Manager.
I am bound and do take into account parity of sentence for those co-offenders who to this date have been dealt with. The only co-offender dealt with so far is the actual manufacturer Vinall who gave evidence at your trial. He was a higher level participant than you and was sentenced to 12 years’ imprisonment with a non-parole period of five years. On the other hand, he pleaded guilty and he was given a very considerable allowance or discount, if I might call it that, for his full co-operation with the authorities.
Further, as was discussed during the plea, there are some differences between Victorian and Queensland sentencing laws. Nevertheless, I bear in mind parity of sentence as far as I am able. One of the major sentencing considerations I must bear in mind in a case of this type and magnitude is general deterrence. The community must know that the courts do not condone and will seriously deal with people who deal in drugs on the scale that you have done. I must also consider a question of the protection of the members of the community from you and bear in mind the likelihood of you re-offending. I am, of course, called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and, as I have said, this is without doubt a serious offence. The quantity of amphetamine was enormous and the nature of the substance potentially seriously damaging to the health of a very great number of people.
…” (G documents at G14)

Mr Otene’s time in prison

Mr Otene said that he had returned a “dirty urine” while he was in prison and that had led to his being transferred from HMP Loddon Prison (“Loddon”) to Fulham Correctional Centre (“Fulham”). He said that he had smoked marijuana. Although the date of the test is not clear from his evidence, it would seem to have occurred some three years into his sentence while he was at Loddon on the first occasion. During cross-examination, he volunteered that he had previously returned a dirty urine but that had not been counted as it was within the first 28 days of his imprisonment. It had tested positive for marijuana.

In cross-examination, Mr Otene said that he had been transferred from the cottages when another prisoner was found to have a mobile telephone. He was told that he was being moved because he had used the telephone but, when the numbers were checked, none belonged to anybody known to him. The officer had not believed him but it was subsequently sorted out.

Mr Ian Gatford, who is the Schools Program Co-ordinator at Loddon, wrote of Mr Otene’s involvement in the schools’ programme:
“ During Sonny Otene’s incarceration at Loddon, he has been involved in a Loddon Awareness Workshop community program. This program involves predominately year 11 and 12 students as well as University and Neighbourhood Watch groups visiting the prison. These groups talk to a panel of prisoners about their crimes, and prisoners on this program are expected to honestly answer questions regarding their initial crime, courts, prisons and the effects their incarceration has had on family and friends.
Prisoners involved in this program are selected by staff on the basis that they are incident free, mature, able to answer a variety of questions honestly and openly and are not considered a risk to what is considered a very important community program. Sonny was a regular panel member for the LAW program during 2002 and conducted himself extremely well at all times.” (G documents at G9)

Mr Otene said that he felt that he made a connection with one child at Ballarat in particular. He had seen that child twice and could see the change in him between the two visits. The child’s school wrote to him thanking him for what he had done.

Mr Otene said that he worked during his time in prison. In the main it was in the kitchen but, while he was at Fulham, he left the prison at 7.30am to travel to the golf course. He spent the whole day unsupervised at the golf course where he trained as a curator.

I have already set out the courses that Mr Otene undertook in prison. Mr Otene said that he used the time in prison to further his education. He studied computers for 3½ years and completed every module he attempted. His plan had been to complete the final 12 hour module of a personal trainer’s course on his release so that he could be qualified to be a personal trainer. That module had to be completed outside prison and his circumstances have meant that he has not been able to start it.

Mr Otene said that he and a fellow prisoner designed a computer program relating to betting. Since his release, he has enquired into research and development opportunities for their program. He said that businessmen and their companies are interested and willing to back them. Although Mr Otene has started a business to promote the program, he has not taken the matter further while these proceedings are unresolved.

Mrs Otene said that her husband apologises for what he has done over and over again. The first couple of months that he was in prison were bad. After that, he began to do courses and he began to change. He asked about the children and their friends and was concerned if they were doing anything wrongly. She found that he was more concerned about them than he was about himself. Mrs Otene said that her husband feels that he will never be able to live down what he has done. It is on his mind. She is confident that he will not offend again, she said in cross-examination. Even though she was not aware of his activities when he committed the offence, she could be confident in the future. That was because she had seen his behaviour at the time. He had suffered a nervous breakdown and had no help for it because he would not seek help. Her husband is now not psychologically the same man that he was then.

Mr Otene’s relationship with his family

Robert was 11 years old when he was imprisoned, Mr Otene said. Although he kept in close contact with his family by telephone and through contact visits, Mr Otene said that it was difficult to be a father to his son, Robert. He would try to speak to him over the telephone and give him guidance but he found it hard. When he was released from prison, Mr Otene found that Robert began to open up to him. He felt that he had managed to get Robert back on the right track since his release from prison.

When he was taken into immigration detention in 2002-2003, however, Mr Otene found that Robert locked him out of his life again. After his release from immigration detention in 2003, Mr Otene thought that Robert was settling very well. Robert lived with him and his wife as well as with their daughter, Connie, her fiancé and her daughter, Holly. Connie and her family are staying with them while their house is built.

Since his most recent immigration detention in 2004, Mr Otene felt that Robert will not open up to him and “has gone quiet” (G documents G7 at [37]). Although Robert has continued his plumbing apprenticeship, Mr Otene has been very concerned about Robert. In his statement, Mr Otene explained the difficulties in greater detail:
“… I want to be a father and guide him through his life. I will care for my children until I die. I now have the opportunity to be in his life and it is now taken away from me again. I believe that if I was in his life he would not be in this state of mind. I missed the best years of his life growing up. I missed his sports days, his first girlfriend, teaching him how to drive. I missed seeing him at his debutant and playing sport with him. I want to meet his friends. There are so many things he wanted to do with me. Sometimes, I blame myself for his attitude for breaking up with his first girlfriend and for the problems he has experienced and is presently experiencing. Rob doesn’t know what to think. One minute his father is back in his life and the next minute his father is at risk of being taken away again. I need to be there for him now and show him that I will never let him down again. But how can I do that if my future is so uncertain? If I taken away again, my son will feel betrayed for a second time. He is afraid. I have been away for so long and I now have my family all around me. I am still trying to get out of ‘jail mode’. It is not so easy to come out and just adapt. I need time to bond with my family and learn that I don’t need my space all the time anymore like I did in prison. Now is a very important time for me to bond with my family and for us to become a family again.” (G documents G7 at [38])

Mr Otene said that his son had also been particularly affected by the loss of his mother’s brother in law, Mr Ray Williams. Mr Williams had been an “amazing support” for his children while he was in prison and he wants to be able to be there for Mr William’s children now that they have lost their father.

Robert both wrote and spoke about his feelings regarding his father and their relationship. When his father went to prison, the whole family spent their weekends visiting him. Robert found it very hard and sad and did not like visiting as the whole family became upset. When he was 14, Robert stopped visiting his father because, as he explained it:
“… it used to stress me out a lot and I started messing up at school and drinking. I would speak to my Dad on the phone and used to lie and tell him that I was doing well because he didn’t like to hear bad things because it would make him feel upset. I was really angry with him for being so stupid and making a mistake that caused everyone so much pain. …” (Exhibit D)

After his father’s release from prison, the whole family was happy but this all changed when he was taken into immigration detention:
“… This upset the whole family again and again I tried not to stuff up, but I did because now I’m angry with the government for not giving him a chance to be a good citizen. I don’t understand why he can’t stay here with his children and grand children and make an honest living, he has done his time for the last 10 years and we have all had enough of these problems. My Dad is a good person and would never hurt anyone, not like all these gangsters going around shooting people and murderers and child molesters that are walking our streets. My fathers [sic] work record speaks for itself. I would like you to consider letting him remain with his wife, 4 children and 5 granddaughters, so that he can enjoy the rest of his life and see the result of all his hard work.” (Exhibit D)

In a letter dated 28 January 2004, Robert wrote:
“There are so many people I want to take him to meet and so many things we need to do together. … I don’t know what I’ll do if I never get to do the things with my dad that we’ve planned, I feel like I’ve been waiting forever.” (Exhibit 1 at G8)

Ms Connie Otene confirmed that her brother “… has unfortunately gone off again …” (Exhibit E) and is now not talking to anyone since his father has been returned to immigration detention. Before that, they had re-established their relationship even though it had been difficult at first and Robert would not open up at first.

Robert Otene asked that he be permitted to give evidence. He wanted to say that he wanted to talk about his Dad and his family and all of the love that they have for each other and how close they are. The past ten years have been very hard for him and his family. When his father was in prison, there was light at the end of the tunnel because they knew that they would all be able to be together again. They were waiting to do things and when his father was home “things have been going great”.

Robert said that he could not explain his feelings. While his father was in prison, he was always being told that he was the man of the family. He felt that he had to be more grown up than he wanted to be and it was no good being the only male in a family of nine girls. To have his father home was unbelievable because that responsibility was taken from him. He did not mind being with nine girls then. Robert agreed that he closes up and shuts everyone out when his father is not at home. He does that so that he keeps everything inside himself. That way, no-one can ask him anything, know one will know anything and he will not snap at his friends. He keeps his emotions to himself until he is behind closed doors. When he is with his father, he does not need to close up and everything is fine. While everything is uncertain about his father, he feels that everything is on hold. He is in the final year of his plumbing apprenticeship and needs to do his exams. He has not been able to concentrate on them and does not want to do them while he is in this state of mind.

Ms Amanda Otene wrote of the support that her father had given her over the years together with her mother. She continued:
“… He is a Grandfather 5 times, a father, a husband, a best friend, a lovely giving man and has more friends and support than any one I have ever known. They say you can measure a person by how many friends they have. Dad is the first person to admit that he has made mistakes in the past and it was wonderful to have him home for that short time and see how open he was with his crime and how he had bettered himself. He apologises to his family everyday for what he did and how we have had to put our lives on hold until he came home. … My dad is not a bad person, he is the best thing that happened to my sister and I all those years ago and he is not our Step father he is our dad. He has a family that needs him and love him, he has grandkids that won’t understand if their pop has to go away where they can’t even visit him. … My daughter Paige is now 12 years old and she only has one living pop the only one she has ever known, if he was taken away again it would rip her heart out. I have a new baby 4 months old I want her to know her poppy, spend time with him like the other kids have. …” (Exhibit H)

Ms Michelle Otene spoke of her love for her father. He was a very protective father who treated his daughters’ girlfriends as if they were his own daughters. His door was always open for his children’s friends and he still speaks with their friends. She believed that he has changed and that he has learned by his mistakes. (Exhibit S, Annex L) Ms Michelle Otene’s partner, Mr Danny Favaloro, wrote in similar terms. He wrote of Mr Otene’s kindness and that he had a lot of respect for Mr Otene.

Ms Connie Otene’s partner, Mr Matthew Pannis, expressed similar views to those of Mr Favaloro. Like Ms Michelle Otene and Mr Favaloro and Ms Amanda Otene and her partner, Mr Gleeson, he and Ms Connie Otene were waiting for Mr Otene to be released before they were married. Each couple wanted him to be at their weddings. Ms Connie Otene said that her father’s relationship with his granddaughters is very strong. He spends a lot of time with them and plays with them. Her daughter, Holly, is always asking where “Pop” is.

Mrs Otene said that her husband loves all of his grandchildren. Each one is different as are his children but he interacts with each of them. As for their relationship, Mrs Otene said that she and her husband “… are still good friends apart from being married; that is important”. She does not now see any signs of his previous erratic behaviour. He now works more family friendly hours.

Ms Shalika Ranaweera is a psychologist who has undertaken a psychogical assessment of Mrs Otene. She wrote a report on 18 April 2004 and canvassed Mrs Otene’s background, her relationship with Mr Otene, the emotional impact of Mr Otene’s situation on Mrs Otene and the family and Mrs Otene’s psychological symptoms. Ms Ranaweera wrote of Mrs Otene’s family background. Mrs Otene was 16 years of age when her mother died in a motor vehicle accident in which her father was driving. Her father suffered debilitating injuries both physically and psychologically. Mrs Otene’s life became very unstable as she was the eldest and had to look after her younger siblings. When she was 26, her father committed suicide. Ms Ranaweera said that Mrs Otene has responded to her early life by devoting her life to the commitment and significance of upholding a family. Her first marriage failed when it became an abusive relationship but with her second husband, she felt that she had found a loving and caring and extremely generous man with whom she was very much in love.

Ms Ranaweera considered that the deportation of Mr Otene could send Mrs Otene spiralling into a deep depression. She has been experiencing a range of symptoms including high levels of depression, low moods, anxiety and panic attacks, lack of sleep and feelings of hopelessness and worthlessness. If Mr Otene were forced to leave Australia, the impact on Mrs Otene may be such that she could not cope and so would function at a much lower capacity. If she were to have an emotional and psychological breakdown, it would be of concern as she holds the family together. Of particular concern would be Robert as he would be at high risk of suicide given his age, his talk of suicide, his gender and his lack of access to male role models. If Mr Otene were permitted to remain in Australia, all his relationships would have a chance to grow and develop into fruitful and productive unions.

Mr Otene’s relationships with others outside the family

Mr Otene said that he has many friends in Australia and has helped out many people over the years. As an example, he referred to Glen who had been the transport manager for Arevee Freighters. He carried freight for Arevee Freighters and became close to Glen and his family in the following way:
“I became close to Glen and supported him throughout his life. I know he looks up to me. Glen’s father was an alcoholic and his parents were separated. He was going through a rough time. Diane and I opened our heart and our home to him. We cared for him whenever he needed care. When Glen’s brother, Donald had a serious car accident when he was 17. He was run off the road by a car and was left paraplegic. This had a devastating effect on Donald’s brothers, Glen and Terry. Glen, himself, was then in a car accident in 1989. Diane and I raced to his bed side. It looked like he was not going to survive. His liver and kidney was damaged and still do this day, he is on a pension. He has not worked since his accident. He walks with a walking stick and his back is badly damaged. Also, he separated from his wife. I am like an older brother to Glen. His children see me as their uncle Sonny.
We are also very close to Glen’s older brother, Terry. Terry was also in a severe car accident. Half of his face was damaged and he had to have plastic surgery. He has recently had corrective surgery on his shoulder. Whilst he was in hospital, he asked me to look after his 16 year old son, Terry junior. I stayed over at Terry’s for a couple of days to make sure Terry junior went to school and behaved. Terry junior has no contact with his mother because he is angry with his mother for leaving his dad.” (G documents G7 at [41]-[42])

Mr O’Neill is the Managing Director of NuTrans (Vic) Pty Ltd. He spoke of an extremely close relationship between his family and Mr Otene’s as well as a close relationship at the business level. They both worked for W & B Blake Transport Pty Ltd between 1978 and 1982. Mr Otene was regarded as one of the better employees of the company as he was enthusiastic and could socialise with both management and staff during work hours as well as out of them. On the social side, Mr O’Neill still saw Mr Otene as the loving, caring father and friend he had always been. On the business side, he considered that Mr Otene has become a very efficient transport operator. He explained Mr Otene’s work:
“… NuTrans has worked with Serges Loading and Kwicktrans for approximately 5 years now. During this time we have had our fair share of problems getting vehicles to move our freight, however now that Sonny is involved in both of these companies in a managerial role we have had a year of problem free transport.
My clients, such as Tontine and Blue Scope Steel have commented on how efficient we have become over this last year. All due to the fantastic effort Sonny has put in.
My belief is that if Sonny departs from Kwicktrans and Serges Loading it will not only affect their companies but will be devastating to mine.” (Exhibit B)

Mr Terry Bausch, who owns and manages Serges Loading Agents, reflected Mr O’Neill’s comments. On many occasions, Mr Bausch said, Mr Otene has taken control of his company when he has been hospitalised or suffered from seizures. At the same time, Mr Otene managed to get Kwiktrans back on track and ultimately became its operational manager. Both he and Kwiktrans try to keep Mr Otene’s weekends free so that he can spend time with his family. Mr Bausch said that he and his family had always supported Mr Otene and will continue to do so.

Ms Rickie-lee Bausch confirmed that Mr Otene had been of considerable help to her father in his business and to their family. She commented that it is “… the most amazing thing to see a family as close as what they all are” (Exhibit G). Mr Otene has also been of considerable help to her:
“My uncle has inspired me to do so much with myself. I use to suffer with very low self-esteem and very angry but it was my uncle who showed me that there other ways to express my emotions and feelings. I recently just went away for 4 days to attend a seminar, which would help me with my issues, and my uncle sonny supported my 100% and offered to pay for the seminar, as he knew I could not afford.
My uncle has been the one who I can talk to and he never judges me he always lends his ear and has always been a shoulder for me to cry on. When I feel like no one else cares I know that I can always rely on him cause he has been like a father figure to me has nurtured me and guided me thru some very shady paths.” (Exhibit G)

Mr Ken Jackson has known Mr Otene for approximately 20 years on both a personal and business level. Mr Otene has not lost any of his energy or will to succeed, Mr Jackson wrote, but he is channelling it in a more positive direction. Mr Jackson felt that Mr Otene had reassessed his values and priorities during his imprisonment and that all augers well for a bright future. He also felt that Mr Otene has plenty to offer his family, commerce and the community.

Mr Craig Smith is the National Transport Manage of Visy and has known Mr Otene personally and professionally since 1990. He had been impressed by his punctuality and extremely professional manner when he was used to ship paper. As a result, Mr Otene was employed by Visy and was responsible for loading and unloading trucks and controlling stock. Mr Otene’s attendance was perfect and he could always be relied on to go the extra mile. Mr Smith described Mr Otene as the kind of person you would want as a friend. Mr Otene would always be the first there to help if he was needed. His commitment to his family and friends could never be questioned. He always spoke of his family and the weekend sporting events they attended. In that way, Mr Otene made them all feel as if they were part of his extended family. Visy was aware of Mr Otene’s background from the start but, knowing him professionally and personally, it was never an issue.

Mr Pasquale Amoroso owns Amoroso Transport Group Pty Ltd (“Amoroso”). He first knew Mr Otene in 1983 when Mr Otene drove for another company subcontracting for Amoroso. Later, when Mr Otene had his own truck, he worked again for Amoroso. In the 1990s, Mr Amoroso again employed Mr Otene as a company driver. In that position, he was entrusted with one of the company’s brand new trucks. Mr Amoroso described Mr Otene as a family man as well as a company man prepared to make time for company outings and barbecues. In summary, Mr Amoroso described Mr Otene as “… a great person, full of pride and passion. He is an honest, hard workingman of great capabilities.” (G documents at G10)

Mr Ken Hook of Regal Cream Products Pty Ltd wrote a reference expressing similar sentiments regarding Mr Otene’s dedication to his work, his strong relationships with his workmates and his deep care for his family. Mr John O’Brien of Fast Konnect Transport wrote of his conscientious work ethic that made him a favourite with customers and of his helpful nature that made him a favourite among his workmates. Mr Ahern had found Mr Otene to be a capable and reliable employee.

Mr Dominic Sorbara is a youth worker with the Salvation Army and has been for the past 20 years. He was introduced to Mr Otene through a mutual friend and liked what Mr Otene told him about his involvement in the schools programme. Mr Sorbara said that he liked Mr Otene’s ideas to help young people and took him on outings such as fishing with groups of young people. During those trips, he has observed that Mr Otene has a calming and positive effect on young people and that he takes the time and has the patience to help young people feel good about themselves. If a young person needed something such as footy boots or runners, Mr Otene would ask around until he found someone who could donate a pair. If they needed emotional care, he would find that too. Mr Sorbara described Mr Otene as “A rough diamond, with a heart of gold” (Exhibit K).

Mr Otene’s relationships with his family in New Zealand

Mr Otene said that his biological father died some time ago. He chose not to attend his funeral. His biological mother still lives in New Zealand but he has no contact with her. Mr Otene said that he has not had any contact with his biological siblings for 30 years and has lost contact with the children of his adoptive parents. His sister, Ms Susan Hannon, moved back to New Zealand to care for his adoptive mother when she was ill and he has lost touch with her. As far as he knows, his sister did not return to Australia.

The future

Mr Otene said that he gave his family his word that he would change his life and address his offending behaviour; he would never cause them heartache again. He did that by obtaining counselling in prison. Although he is still in the transport industry, he is a different person and he is no longer a driver. If he is approached about drugs in the future “they will be talking to the wrong person”, he said. When he was working after his release from prison, he left for work at 7.00am but was home at about 6.00pm to ensure that he spent time with his family. Apart from emergency calls that he could largely manage from home, he spent weekends with his family. He plans to continue those hours in the future.

If he had to return to New Zealand, he would not know what he would do with himself. He has no ties to it and does not regard himself as a New Zealand citizen. He is an Australian with an Australian wife, Australian children and Australian grandchildren. He has owned companies in Australia, employed people in Australia to work for him, paid his taxes and been involved in many community activities. Over the years, he has been seen as a person who motivated and helped others. Were he to be deported, his family would not be able to travel to New Zealand because of their financial and other commitments in Australia. In any event, he asked, why should they move to a country about which they know nothing. In cross-examination, he rejected the suggestion that he could continue the work with his software program in New Zealand. Those interested in his program are based in Australia, he said. There is another person involved as well and he needs to be with him.

Mr Otene said that he does not want his children to feel heartache or pain as he did when he grew up knowing that his biological family did not want him. He used to believe that providing for his children in a material way was the most important thing. He now realises that it is more important for him to be in his children’s lives on a day to day basis and to support them emotionally. He went on to say:
“… My family are my world and my life. They are the air I breathe. If I could never see my wife, my children and grandchildren again, this would utterly destroy not only me, but totally destroy my family as well.” (G documents G7 at [45])

Mr Otene said that his business, DNA Holdings, will be used to develop software programs and for a transport delivery business he wants to start. He has not taken it further while his future in Australia is uncertain.

Mrs Otene said that she did not know what she would do if her husband were required to return to New Zealand. She thinks about it 24 hours each day. It would be a hard decision for her to make. She grew up without parents and her children did not have grandparents. She has her children and her business in Australia and just does not know what she would do. As for New Zealand, she has no connection with it at all and does not like anything about it. On the one visit she made to it, she saw a lot of things that she did not like and does not know how she could live there. The grandchildren are getting used to having their “Pop” back with them and she just does not know what she would do. Mrs Otene said that she just does not see her going to New Zealand as happening but, at the same time, she does not see how her husband can go there on his own.

Mr Foglia also spoke of Mr Otene’s future:
“… I would like to express my support for Mr. Otene, I do so with the belief that he is working hard enough to deserve a chance to prove himself. I spent the last ten years of my fourteen-year career working in the drug and alcohol field mostly with forensic clients. I did so in different capacities and in a variety of settings including residential and outpatient; group and individual; youth and adult; voluntary and involuntary; community and custodial. During all these years, I have rarely come across people like Mr. Otene. Since we first met in November 2003, I have witnessed him producing a longitudinal transformation driven by determination and commitment to change and better him. A loving and supportive family and friends who appear to have no difficulty in relating to his positive, well-intentioned side surround him. In my opinion, Mr Otene’s biggest challenge is continuing to learn how to nurture himself using this feedback. His recent insights suggest that he is on track and already achieving this. Finally, I want to state that I will be available to continue working with him should he request it.” (G documents at G11)

Events associated with the implementation of the Minister’s decision

Mr Otene said that the Department notified him in 1998 that his visa could be cancelled because of his convictions and sentences in the County Court in 1997. He was informed in a letter dated 30 November 1998 that he would be interviewed by an officer of the Department “as soon as possible” (Exhibits A at [4] and O). At about the same time, the Department wrote to the County Court for certificates of conviction (Exhibit P).

Mr Otene replied to the letter in January 1999 but heard nothing further. When he wrote again in January 2001, he received a response from Ms Kerrie Tyas of the Department to the effect that the Department’s high case load meant that it was impossible to set a time for an interview. Ms Tyas told him that he would be notified when his matter was allocated to a case officer.

In October 2001, Mr Otene’s C security rating was cancelled as a result of the possibility of his being deported. It was subsequently restored and he was again permitted to have weekend family visits.

On 5 March 2003, the Department wrote to Mr Otene notifying him that the Minister was considering whether his visa should be cancelled. Mr Otene replied to the letter and his family and friends wrote letters of support. He was interviewed at Loddon Prison (“Loddon”) on 26 August 2003 by Mr Carlos Bagnato by video link. Mr Bagnato told him, Mr Otene said, that if he had not heard from the Department by the time he was released from prison, “everything would be OK” (Exhibit A at [6]).

By the time he was released on 1 December 2003, Mr Otene had not heard from the Department. He assumed that all was well with his visa. He immediately began work and complied with the conditions of his parole. Unknown to Mr Otene, the Minister had personally made a decision to cancel a special category 444 visa that he was thought to hold and had done so on 10 December 2003. A few days before Christmas, Mr Otene was taken into immigration detention as a result of the decision. When the Department agreed that Mr Otene was not the holder of a special category 444 visa, he was released from immigration detention but that did not occur until February 2004.

Mr Otene was again detained after the decision to cancel his visa was made on 12 November 2004. He has remained in immigration detention at Baxter until the hearing of the case.

Psychological evidence

In his report, Mr Raul Foglia, a Counselling Psychologist, noted that Mr Eric Jenney of the Community Offenders Advice and Treatment Service (“COATS”) had assessed Mr Otene on 13 August 2003 while he was at Loddon. Mr Jenney had noted Mr Otene’s seven year abstinence from substance use, his drug and alcohol treatment at both the individual and group levels during his imprisonment and the prospects of his reinsertion in a family environment and the workforce upon his release from custody. Even so, he recommended that, as a condition of his parole, Mr Otene be required to attend an episode of Counselling, Consultancy and Continuing Care as part of his post-release support plan.

At the time Mr Foglia wrote his report on 16 April 2004, Mr Otene had attended two counselling sessions; one on 3 December and the other on 11 December 2003. Mr Foglia described him as being “… punctual and cooperative, demonstrating some insight into the problematic nature of his past lifestyle and committing himself to his therapeutic process” (G documents at G11). Mr Otene offered to share his experiences in education programmes for young offenders. After his detention, there was a further session on 13 January 2004 but, in consultation with his parole officer, the sessions were ended. After his release from detention, Mr Otene asked to be readmitted as a voluntary client on 16 February 2004 and has since attended regular weekly sessions.

CONSIDERATION

Framework of Act

Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). An Absorbed Person’s Visa is provided for in s. 34 of the Act and is granted by force of that section.

Even though an Absorbed Person’s Visa is specifically provided for in the Act rather than the Regulations, it is subject to the provisions of s. 501(2) of the Act, That section provides:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”

The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“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
(b)…
(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; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”

A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:

“…a person has a substantial criminal record if:
(a)…

(b) …
(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; or
(e)…”

The term “imprisonment” means “… any form of punitive detention in a facility or institution” (s. 501(12)).

I find that Mr Otene has a substantial criminal record. That is so because he comes within s. 501(7)(c) because of his being sentenced for trafficking to two terms of six years being an effective total term of nine years with a seven year non-parole period.

The Direction

Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”

The Direction - application of the character test

The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Otene has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.

The authorities regarding “good character”

Although Mr Otene has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, 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.” (page 781)

What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)

In light of the Convention, Mr Otene’s solicitors submitted that the Direction is designed to give effect to the principle that administrative decision-makers are to treat the best interests of the children as a primary consideration. They are not to focus merely on the relationship between the parent and the child. The Direction should be read in light of the expectation that the best interests of the children affected by the decision under review should be considered. They should be considered irrespective of the relationship between the child and the person who is the subject of the decision.

Having considered the submissions made on behalf of both parties and the authorities I have set out above, I do not accept the position of either party in its entirety. Beginning with the definition of “close relative” in the Regulations, I do not consider that it assists me. It is not the expression used in the Direction and is not referred to in s. 501. It is found in the criteria for a Subclass 020 Bridging B visa (Regulations, Schedule 2, criterion 020.222) when an applicant for that visa has to travel overseas because a close relative is seriously ill or recently died. The other reference is found in r. 2.12A relating to Vietnamese refugees who have settled in the People’s Republic of China. Neither of these is relevant to the interests of children.

With regard to the Convention, it is clear from Teoh that I must act in accordance with it. That, however, does not lead automatically to the conclusion that the interests of children affected by a decision must be a primary consideration. Clause 1 of Article 3 relied on by Mr Otene opens with the words that it refers to “… all actions concerning children …” (emphasis added). The ordinary meanings of “concerning” include “… regarding; relating to; about.” (Chambers 21^st Century Dictionary, revised edition, 1999 and see (Macquarie Dictionary, 3rd edition, 1997). It has been considered judicially and I note that it has been interpreted quite widely in some contexts to be synonymous with “affecting” (In re Sutton, Boscawen v Wyndham [1920] 1 Ch 257 at 267 per PO Lawrence J).

Whether it should be given a wide meaning of that sort when it appears in Clause 1 of Article 3 or some narrower meaning is not a matter that I have to decide. Whatever its precise meaning, the majority in Teoh make it clear that decision-makers cannot be expected to act in conformity with the Convention where there is a legislative or executive indication to the contrary. The Direction is an indication from the Minister and so from the Executive Government as to the manner in which decision-makers should regard the interests of children in the context of decisions made under s. 501 of the Act. Where it differs from the Convention, it must be preferred by decision-makers.

The Direction clearly indicates that the Minister does not consider the interests of all children to be a primary consideration when decisions are made under s. 501 of the Act. Instead, the Minister has indicated that the best interests of children are a primary consideration “… in all cases involving a parental or other close relationship between a child or children and the person under consideration …”. This is set out in cl. 2.3 of the Direction and it does not go beyond those relationships. It is not modified by the provisions of cll. 2.13 to 2.16. Those clauses must be taken as expanding upon the general proposition set out in cl. 2.3 just as the other two primary considerations are set out in cl. 2.3 and developed in subsequent clauses.

The practical consequence of this interpretation is that there must be several findings of fact:
(a)are there any children under the age of 18 years?
(i)if all children are aged over 18 years, their interests can be taken into account under cl. 2.17;
(b)if so, is there a “parental relationship” between the children and the visa applicant?
(i)if so, the bests interest of the children are a primary consideration;
(c)if there is no parental relationship, is there a “close relationship” between the children and the visa applicant?
(i)a “close relationship” is something other than that between children and their birth parents for that is covered by the expression, “parental relationship”.
(ii)It is arguable that the expression “parental relationship” extends to those who stand in loco parentis with children. Whether it is or not, those in loco parentis are likely to be found, as a matter of fact, to have a “close relationship” with the children.
(iii)This accords with the provisions of the Convention I have set out above and there is no indication that the Minister has intended to displace the Convention’s emphasis on protecting the relationship between children and those responsible for their care. The Convention makes no reference to whether or not there is a legal relationship at the foundation of that relationship of responsibility or the nature of that responsibility be it immediate or more distant.
(iv)Those who have a “close relationship” may include a broader range of persons than parents and those who have responsibility for their care. That interpretation accords with the ordinary meaning of the expression. A “relationship” refers not simply to “… the state of being related …” and “… to the state of being related by birth or marriage …” but also to “…friendship, contact, communications, etc between people …” (Chambers) or “… an emotional connection between people …” (Macquarie). The word “close” needs no explanation. Having already dealt specifically with the parental relationship, it seems to me that the Direction intends that I should have regard to any child who may be described as having a close connection of some form whether it has its basis in their being related by birth or by marriage or because there has been close contact or communication of some nature. Whether there is such a close relationship depends on a consideration of the evidence and it is impossible to foresee all of the circumstances. This approach is consistent with the requirement in cll. 2.16(a) and (b) of the Direction that the nature and duration of the relationship must be considered.

Should Mr Otene’s visa be cancelled?

In this case, Mr Otene has not attempted to walk away from the offences that he has committed or the basis on which he was sentenced. In relation to the two convictions of trafficking, he has admitted the circumstances that led to his committing the offences and to his part in them. At the time that he committed the offences, I find that he did not regard them as serious offences. He saw them as a means to an end and the end was his accumulating some money so that he could save his business. At the time, I find, Mr Otene saw his activities as distributing amphetamines solely within the trucking industry. That was an industry where Mr Otene knew that amphetamines were used. Indeed, he had used them himself. He did not have any understanding of how the distribution of amphetamines within the trucking industry could affect the wider community.

Whether the amphetamines he distributed were confined to the trucking industry does not detract from the seriousness of the offences of trafficking of which Mr Otene was convicted. They were, I find, very serious. That finding is inherent in the offence of trafficking itself. The Direction has classified it so but quite apart from that, there can be no doubt about that by reason of the harm that may be caused to an individual and, in turn, to the community as it cares for the individual affected by amphetamine use and loses the individual’s contribution to Australia’s economy and to its social and cultural capital. The damage to the community was expressed in more robust terms by Tadgell J who had clearly seen too many drug offenders before him:
“Drugs of addiction – wantonly produced, distributed and used- continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. Moreover it begets further evil, as anyone who cares to sit as an observer in this Court for a week will surely find. It is an intolerable burden because the modern civilised society simply cannot sustain its crushing weight and yet remain civilised. One by one the civilising props must give way. Year by year we see decent standards warped. They do not suddenly fail, but noticeably they are upheld by progressively fewer members of the society as soft options fostered by addictive drugs become acceptable. Community life then needs to be supported less and less upon robust, natural attitudes and more and more upon artificial, compromised, drug-engendered values.” (R v Moran and Byrnes (1987) 31 A Crim R 248 (Vic CCA) at 254)

The circumstances of Mr Otene’s offence add an extra dimension to the seriousness of the offences he committed. They were not simply one-off and minor instances. They involved very large amounts of amphetamine by weight. That is quite apart from their enormous wholesale value and their even more enormous value had they reached the streets. On the other side of the ledger I find that Mr Otene was certainly not involved in the senior management of the operation and was not a manufacturer. In some circumstances, that may not be a factor of any import. In this case it is. I find that, as the Victorian Distribution Manager, Mr Otene performed an important function at medium to senior management but it was not a central role. I also accept, as did Judge Crossley, that Mr Otene was “seduced” by others into becoming involved in drug distribution. He was open to it having used amphetamines as a truck driver and, even though he did not recognise it at the time, having an addiction. His previously long-held views that drugs should be avoided at all costs and his first-hand experience of dealing with one of his sisters who was addicted to drugs did not deter his being seduced. Unlike some others, though, he did not draw his family into his activities and, despite his checking the drugs on his home premises, I am satisfied that he did so in circumstances that were intended to ensure that they had no contact with amphetamines or with his illegal activities. Even when both sides of the ledger are taken into account, I find that the offences of trafficking committed by Mr Otene were very serious indeed.

What of the likelihood of Mr Otene’s committing further offences if he were permitted to rejoin the Australian community? I find that he already had convictions for offences committed prior to his trafficking offences. His conviction in 1979 is of little importance. I accept that it arose out of a one-off set of circumstances and was not instigated by Mr Otene. It has nothing to do with his more recent behaviour.

Those he committed in 1994, some two years before the major offences of trafficking, are more concerning. Again, Mr Otene does not seek to walk away from them by trying to explain them away. He gives his account in a balanced way and takes responsibility for his actions. Of some importance in assessing his earlier offences is Mrs Otene’s evidence. On the basis of her evidence, I accept that she had become very concerned about her husband’s behaviour at about this time. He would not listen to her and his behaviour had become erratic. I find that, at this time, he was taking amphetamines as he was trying to stay awake so that he could ensure that he met his work commitments. Mr Otene’s convictions for possession of drugs of addiction or of amphetamine in 1994 (arising from events in 1992) and 1995 are, I find, related to his use in that context. His behaviour that resulted from his use led to his arguing with his wife and, apart from the possession of an unregistered firearm and possession of a drug of dependence, led to his committing the offences in November 1992. Mrs Otene’s decision to seek an Intervention Order in an attempt to assist her husband, led then to his breaching it a couple of days later as she knew he would.

Mr Otene’s convictions for firearms offences are of some concern. He has explained his possession of them as arising out of innocent activities. In view of his explanations and in view of the fact that nothing was made of his possession a loaded pistol and another gun in his bedroom at the time of the police raid, I do not think that I should make anything of it either. I accept Mr Otene’s explanations as to how he came to be in possession of the guns in 1994 as well as earlier.

As I have said, at the time he committed the offences, Mr Otene did not see their significance in the wider community. Since then, he has said that he has learned so much in the seven years that he was in prison. In summary, he has come to see how his reactions to his friends’ pressure and his need to be part of the main group led him to become involved in drug trafficking. Mr Otene has now learned to say “no”. He has come to understand that it is his family and his love for him that is what is important and not the extras that he can provide by working harder for longer hours. If Mr Otene has reached this understanding, it is a key factor in determining whether or not he is likely to re-offend.

In some cases, it may be thought that a person in Mr Otene’s position saying the things that he is saying is simply yet another who “… may smile, and smile, and be a villain …” (William Shakespeare, Hamlet, 1601, Act 1, Scene 5, line 105). Having thought long and hard about it, I do not think that Mr Otene is such a person. He has not only said at the hearing all the things that indicate that he has changed his ways but said them consistently to others in the past. Furthermore, he has shown that he has changed his ways through his actions.

Taking what he has said to others first, I find that he has told his family of his shame at his past actions and has talked to Mr Faglia at some length. I find that he has acknowledged his role in events and has accepted that his responsibility in them was considerable. He has not attempted in any way to sidestep his responsibility and has resolved to do better.

Mr Otene, I find, has resolved not to re-offend and has backed his resolve with action. He has thought about his past and his attitudes that led him to becoming involved with amphetamines at any level let alone as a person involved in dealing. He has become aware of the way in which his work became all consuming and how his focus on monetary aspects meant that he was blinkered and could not see that he was not attending to the other needs of his family. In addition, he has thought about his attitudes to others. It is clear to me from all of the evidence that Mr Otene has always been a very generous friend. That is a fine quality but Mr Otene has, I find, also come to realise that being a good friend to his family and to those he cares about may mean refusing to do what everybody asks of him. He has learned to exercise some judgment and to understand that it is more important to exercise that judgment than to be popular with everyone by agreeing to do everything everyone suggests.

Turning to his actions, Mr Otene has not simply undertaken the counselling that he was required to undertake under his parole. He has continued his sessions and I find on the basis of Mr Otene’s evidence and that of Mr Faglia that he has done so because he is committed to changing his ways or, as Mr Faglia puts it, the therapeutic process. He has turned his intentions into actions by modifying his work hours to fit his family life and his view that he should be showing his love for them by spending time with them and not simply working to provide material things for them. That is clear from the evidence of both Mr and Mrs Otene as well as of Mr Bausch.

While still in prison, he took part in the Loddon Awareness Workshop community program. This was, I find, a practical way in which he showed his understanding of what he had done and the path that he should have taken and should take in the future. I accept that, quite apart from the intangible and perhaps immeasurable influence he might have had on young persons’ lives as a result, Mr Otene managed to achieve some identifiable success in this with at least one young person. I also find that he has refrained from taking amphetamines during his imprisonment and since his release. This is a significant achievement given that I accept, on the basis of Mr Faglia’s evidence, that he was dependent on amphetamines at least to some extent up to that time. Although the evidence is a little uncertain, it would seem that Mr Otene might have returned a positive test for marijuana use during his imprisonment. If so, it was well before his release by at least some four years. It was a matter that Mr Otene volunteered in giving his evidence and a matter that, had he not done so, would not have been apparent from the papers. This is also indicative of his desire to try to behave appropriately in the future. So too is his evidence, which I accept, that he has not been in any contact with those with whom he has previously dealt in amphetamines and has done since his imprisonment.

Mr Otene, I find, has not simply shown his new ways to his family but also to his friends and employers. Mr Otene has, I find, always been a reliable, and hardworking employee and equally respected when he was running his own business. Employers rely on his professionalism and efficiency. Mr Otene continues to be professional and efficient and to be highly regarded by those with whom and for whom he works. On the basis of the evidence, I find that he is trusted.

Having regard to these matters as well as to the whole of the evidence, I am satisfied that he has shown resipiscence (R v Jabaltjari (1989) 64 NTR 1 at 14 per Asche J). That is to say, he has shown “Repentance for misconduct; recognition of errors committed; return to a better mind or opinion” (Oxford English Dictionary, 2^nd edition, 1989). I am satisfied that the risk of his re-offending is very small.

That brings me to deterrence. As I have said in other cases,
“…deterrence in the context of the character test is always difficult. There is no empirical or other evidence that I have been given as to the deterrent effect that requiring a person’s departure from Australia has on other people’s behaviour. It may be that people who know Mr Ince know of what happens to him but would that deter them from behaviour leading to their committing offences? They might not have engaged in such behaviour in the first place or even thought of it. If they did, they might be Australian citizens in any event. Does the news of what happens to a person travel through the community in ways I am not aware of? I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.
143. The notion of deterrence in the Direction equates with the notion of general deterrence in sentencing. Mitchell J reflected similar concerns in the context of sentencing:
‘Whatever the judge may say, his remarks may or may not reach that section of the community to which they are directed, depending upon whether those who publish reports of court proceedings regard the remarks as being worthy of reporting, and whether the criminally-minded persons for whom they are intended read or listen to any report which may be made. It is useless to suggest that one of the purposes of a sentence is to deter others from committing a similar crime, if the knowledge of such sentence does not come to those who are likely to commit the crime.” (Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49).” (Re Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92 at [142-143])

Mr Brereton submitted that I should have regard to the following passage from the decision of Deputy President Jarvis in Re Peter and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585 when he said:
“… Further, the fact of cancellation puts the respondent in a position where it could point to an established precedent and, indeed, it could give some publicity to this precedent if this became necessary. Although in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme, it is considered that on balance this consideration points in favour of cancellation of the visa.” (at [58])

In general terms, there is merit in Deputy President Jarvis’s view. If there were an “established precedent” and if it were made known to the general public, it is possible that it could deter somebody from committing offences. One case, however, does not make an established precedent. Each case is dependent upon its circumstances and whether a person in Mr Otene’s position in the community would have been deterred is open to question. Another person with an Absorbed Person’s Visa may well not give any thought to his or her status as a citizen or non-citizen in the community. That person may, like Mr Otene, consider that to be an irrelevant issue as he regarded himself as an Australian who was entitled to remain whatever the circumstances. After all, until his imprisonment, he had never been given any warning that his right to remain in Australia could be jeopardised by his actions. The most that I can say in this case is that cancellation may possibly deter someone from committing offences if it became known that Mr Otene’s visa were cancelled because he committed offences. On the evidence that I have, however, the likelihood of people outside Mr Otene’s circle of family and friends becoming aware of the cancellation is low. There is nothing that persuades me that it will become more widely known. Therefore, the likelihood that the cancellation of Mr Otene’s visa would deter others from committing offences is low.

Turning to the expectations of the Australian community, I will repeat what I said in Re Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100:
“… there is no question that the majority of the Australian community expect that those who come here will obey its laws. Breaches of some laws will be considered minor and even tolerated. Others are not and breaches related to the trafficking of drugs are among the latter. Most members of the Australian community have a very grave concern about illicit drugs and a very grave concern for those who take them. This is a matter that is “… within the knowledge of ‘every well-informed person in Australia’ …” and so a matter of which I can take judicial notice (Simpson v The Queen (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19 at 234; 575; [14] per Gaudron and McHugh JJ). That concerns extends to the families for illicit drugs and their consequences may consume not only the individual but all about them. Looked at more broadly, drugs have economic consequences in terms of support and health care of those affected to the loss of their contribution to the community in economic and social terms. Those who supply those drugs are abhorred.
111.                In relation to an offence such as drug trafficking of heroin, it may be regarded by some as an offence that cannot be tolerated and so justify the offender’s removal. Some may give no thought to mercy, thinking that this is an example of a situation in which:
“In the public administration of justice, mercy to one may be cruelty to others.” (1711, Joseph Addison, The Spectator, No. 169)
What is inherent in their position, though, is that they have given thought to mercy. Mercy is also something to which regard is paid in the Direction. Clause 2.12 does not attempt to proscribe the circumstances in which the Australian community will consider that the mere nature of the offence will justify refusal or cancellation of a visa.
112.                Again, this is consistent with the approach taken in the criminal courts which are equally concerned with the protection of the Australian community as is the Minister in exercising her powers under s. 501 of the Act. In South Australia, King CJ said:
“… There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.” (R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 at 212-3; 394)
A similar approach was taken by Wallace J in Western Australia:
“Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-3; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324.” (R v Rowe (1991) 52 A Crim R 196 at 201 per Wallace J)
113.                Although considerations in the migration jurisdiction are not limited by those in the criminal jurisdiction, I consider that guidance can be gained from the criminal jurisdiction and particularly so as the Direction, to which I am bound to have regard, does not purport to “… create any presumption as to the way in which that discretion should be exercised. …” (Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 per Dowsett J). Compassionate grounds are considered under clause 2.17(j). It is not a primary consideration but the Australian community does not weigh up its reaction to offences and a history of offending without having regard to mercy. It is artificial to try to do so and it seems to me that clause 2.12 of the Direction does not attempt to do so.

These considerations are equally applicable to this case. I have also kept in mind the statement made by Deputy President McMahon in Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] 1054 that “… there would be a general expectation in the community that the Act would be administered fairly and humanely” (at [34]). In addition, I have kept in mind the statement by Deputy President Block in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 when he said in relation to paragraph 2.3(b) of the Direction relating to the expectation of the Australian community:
“It assumes (incorrectly) that there is an Australian community which thinks as one. … I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. …” (at [7(m)])

Drug trafficking and particularly drug trafficking of the amounts with which Mr Otene was involved rightly draws the ire of the Australian community. It is an offence the consequences of which can spread widely and perniciously through the community. The consequences are visited upon those who use drugs but also on their families and associates as well as upon the community generally. Having said that, is it a crime that is so heinous or gravely reprehensible in its own right that it justifies the removal of its perpetrator without regard to anything else? I think not. Trafficking takes many forms and occurs at various levels. If not at the highest level, Mr Otene’s was amongst those at the highest level in so far as amphetamines are concerned. Does that mean that it is an offence that is so heinous in its own right that Mr Otene should be removed from Australia?

Again, I think not. There is no denying that Mr Otene has committed gravely reprehensible crimes. Since then, he has made genuine and considerable efforts to mend his ways. He has shown that he is succeeding in doing so. Furthermore, he is using his experiences to deter others from offending. He started doing that while he is in prison and, on the basis of his evidence and that of Mr Sorbara, I find that he has continued to do it since his release from imprisonment. Mr Otene has also returned to employment and continued to make a very valuable contribution to those for whom he works by improving their efficiency and productivity. That finding is supported by the evidence of both Mr Bausch and Mr O’Neill. In these ways and quite apart from the role he plays in the lives of his family and friends, he is making a contribution to both the economic and social capital of Australia. When I take these aspects into account, I am satisfied that, were the Australian community to be aware of them, it would not expect that Mr Otene’s visa be cancelled despite the very serious nature of the offences of which he has been convicted.

Mr Otene does not have any children aged under 18 years. He does have grandchildren who are all under that age. I am satisfied that he has a close emotional relationship with each of them. It is clear to me from the evidence that he maintains close relations with all of his family and whatever their ages.

As to whether his not being a physical presence in their daily lives would have any lasting negative impact is difficult to judge. I accept that he is a very large presence in their lives. I accept that he is well-loved and that he would be sorely missed. Whether it would go any further than that in the long term is difficult to assess. Children are resilient and have the warmth of their parents but, in a family which has the close ties of the Otene family, Mr Otene’s absence would, I find, be at least in the nature of a constant nagging feeling that something was missing. I cannot take it any higher than that.

Of greater concern to me is Robert. He cannot be a primary consideration because of his age. I am satisfied that he has suffered greatly from the physical absence of his father during his formative years. He is to be admired because he has struggled to keep going. In doing so, he has kept out of trouble and has completed a substantial portion of his plumbing apprenticeship. The absence of his father, however, is something that has proved to be a considerable burden to him. He has felt that he has had to be the man of the house in the place of his father and that has led to his feeling that he has had to adopt responsibilities and behave in a manner far beyond his years. At the same time, he feels that he cannot communicate with others, either family or friends, and so cannot share his burden. This has led to his withdrawing from his mother and sisters, who are hurt by his doing so. If Mr Otene were required to leave Australia, I am concerned that Robert would withdraw further from his family and friends. This is a concern that gains support from Ms Ranaweera’s report who speaks of the high risk of suicide of young men in Robert’s position.

I am also concerned about Mrs Otene. Again, her interests are not regarded by the Direction as a primary consideration. She answered very honestly and openly that she would not know what to do if her husband were not permitted to remain in Australia. She would be torn between her husband, to whom she is deeply attached and for whose welfare she would fear if she were not with him, and her children and grandchildren in Australia. Their children, I find, would not move to New Zealand to live. Mrs Otene would not look forward to life in New Zealand because the side of life that she has seen in that country has not been the best of it.

Mr Otene does not know what he would do if he were required to return to New Zealand. I accept that he has no ongoing relationship with anybody in that country even though he may have siblings there who are still alive. Although Mr Otene has doubts whether he would find work, his previous work history and his strong work ethic would stand him in good stead. As far as his family is concerned, I find that Mr Otene would be separated from them and would see them only occasionally as finances permitted them to travel to New Zealand. Being so strongly attached to his family, I find that he would be lost without them. They too would be lost without his continuing presence in Australia. I accept that they have put parts of the lives on hold. Those parts relate to matters such as their weddings so that their father can be present. Unlike their brother, though, they have managed to move forward with their lives and to form relationships and to have their children despite the absence of their father.

As clause 2 of the Direction states, the purpose of cancelling a visa under s. 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice as to who should be allowed to remain in Australia. I have these purposes very much in mind. I also have in mind that the effect of the Full Court of the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs is that the deficiencies in Mr Otene’s conduct must be measured against the level of harm that that would be presented by his remaining in the Australian community on a permanent basis. That, of course, is not to diminish the other matters to which I must have regard or to alter the balance between the primary and secondary criteria specified in the Direction. When I have regard to all of those issues, I consider that the risk of Mr Otene’s re-offending and committing further crimes is very low. He has changed his attitudes and in doing so has shown the Australian community that he not only can become a valuable member of it but that he is a valuable member. His value is reflected by the evidence that was given in support of him from a wide range of people and that I have only touched upon. The safety and welfare of the Australian community would not be enhanced by his removal.

Mr Otene would face some difficulties if he were required to return to New Zealand. His family would be separated even if his wife decided to travel with him. His daughters and their partners would be sorrowful and would miss him greatly but would continue with their lives. His wife would be torn as would his son. Both, I find, would be deeply emotionally affected. His son would be vulnerable to choosing wrong paths in life without the presence of his father. At the same time, if Mr Otene were required to leave Australia, the Australian community would be diminished were it to lose the contribution that a person in his position can give to it. It would be further diminished if it were not to show understanding and mercy to a person who has done so much to show his contrition and to assuage his previous wrong doings. Taking all of these matters into account as required by the Direction, I consider that the discretion under s. 501 of the Act should be exercised so that Mr Otene’s visa is not cancelled on the basis of his being not of good character.

For the reasons I have given, I:
1.set aside the decision of the respondent dated 12 November 2004; and
2.substitute a decision that the applicant’s Absorbed Person’s Visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.

I certify that the one hundred and fifty six preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

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

Nathaniel Wills Associate

Date of Hearing  3 February 2005
Date of Decision  15 February 2005
Counsel for the Applicant             Mr G. Hughan
Solicitor for the Applicant            Clothier Anderson & Associates
Solicitor for the Respondent        Mr M. Brereton
Australian Government Solicitor