Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 585
•8 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 585
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/93
GENERAL ADMINISTRATIVE DIVISION ) Re SONNY PETERS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date8 June 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – special category visa sub-class TY-444 – cancellation of visa – discretion not to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No. 21 – primary and other considerations – use of protected information – evaluation of protected information – decision under review affirmed
Migration Act 1958 ss 501(2), 503A and 503D
Australian Citizenship Act s 50
Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 203 ALR 320
Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N205
Minister for Immigration v Ali (2000) 106 FCR 313
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118
REASONS FOR DECISION
8 June 2004 Deputy President D G Jarvis 1. A delegate of the respondent decided on 29 October 2003 to cancel the applicant’s Special Category Sub-class TY-444 visa on the grounds that the applicant did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). He also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of that decision.
2. The applicant was represented by Mr M A Griffin, of counsel. The respondent was represented by Mr R J Prince of the Australian Government Solicitor’s Office. The applicant gave evidence, and also called his wife, Julianne Peters, his daughter, Bianca Cherie Matthews and a friend, Jackie Weston to give evidence. The respondent did not call any witnesses.
3. The Tribunal received in evidence the documents lodged pursuant to s 500(6F) of the Migration Act 1958 (Cth) (exhibit A1). Other documents were also tendered and will be referred to as appropriate in these reasons. These further documents included a number of character references from people who know the applicant, and also certain information (“protected information”) which cannot be divulged by virtue of s 503A and s 503D of the Act. This protected information was tendered by the respondent, and comprises exhibits R2, R3, R4 and R5. By declarations under s 503A(3) of the Act, a delegate of the Minister declared pursuant to s 503A(3) of the Act that disclosure of the protected information could be made to Mr Prince, the respondent’s counsel, Mr M T Kennedy, a senior lawyer with the Australian Government Solicitor, my associate and me.
4. Because of the constraints on the disclosure of the protected information, the Tribunal suggested to the advisers to the parties, following the conclusion of the hearing, that the Tribunal’s evaluation of the protected information and its relevance to the issues before the Tribunal should be included in a separate document which would be kept by the Tribunal in a sealed envelope, with a copy provided only to the two officers from the Australian Government Solicitor who are authorised to receive the protected information, namely Messrs Prince and Kennedy. Counsel for the respondent advised that the respondent had no objection to this course of action. The applicant’s solicitors advised that they understood the reasons for the Tribunal’s suggestion, but because they had no information about the protected information it was impossible for them to say anymore than was said during the applicant’s oral submissions, and they could only repeat their previous submission that as much information as possible be included in the reasons for decision, subject to the Tribunal complying with s 503A of the Act. I will refer later in these reasons to the applicant’s submissions as to s 503A. A copy of the confidential portion of this decision has been forwarded to Messrs Prince and Kennedy and retained in a sealed envelope on the Tribunal’s file.
Issues for the Tribunal
5. The applicant conceded that he did not pass the character test under s 501 of the Act. The only issue for the Tribunal was whether the discretion not to cancel the applicant’s visa should be exercised in the circumstances of this case. I have decided for the reasons referred to below that the discretion should not be exercised in favour of the applicant.
Background
6. The following background facts were not in dispute. The applicant was born on 12 June 1962 in Tamauranu, New Zealand, and is 41 years of age. He migrated to Australia with his wife and children in January 1992. He has three children, a daughter, Bianca, aged 18, a son Mark, aged 13, and a daughter, Hayley, aged 11. His wife and children are permanent residents. The applicant’s oldest brother moved to Australia in the early 1980’s and is a priest in the Uniting Church at Port Augusta. He has two other brothers in Australia who live in Geelong and Adelaide respectively. He has an older sister who lives in New Zealand, but he has not been in contact with her for many years. His mother lives at Port Augusta, and his late father also lived there until his death. His burial place is at Port Augusta. His youngest brother’s only child is named after the applicant, and is now six years old. The applicant is very close to this nephew.
7. The applicant applied for Australian citizenship on 4 June 2002. A copy of his application for citizenship was tendered and is exhibit R1. This states that the applicant first arrived in Australia on 23 January 1992. Item 43 of the application form requires the applicant to disclose whether he or she has “ever been convicted of, or found guilty of, ANY offences”. The applicant ticked the “Yes” box against this question, and later in the same question provided the following information regarding his previous convictions:
“1. Elizabeth Court – 1994. Social Welfare overpayment. Money paid back before sentencing. 12 month suspended sentence.
2. Elizabeth Court – 1994. Assault charge. Suspended sentence, community service.
3. Elizabeth Court 1999. Item of disguise. $300 fine.
4. Adelaide Court. Demanding money by menaces. 2000. Charges were dropped.”
The assault conviction in Australia resulted in a penalty of 12 months imprisonment, which was suspended on his entering into a good behaviour bond. The Tribunal notes that it was not necessary for the applicant to disclose the last charge, because Item 43 of the form only refers to convictions and pending proceedings and not charges which were not proceeded with. It is also noted that a further conviction in 1998 for failing to register a motor vehicle was not disclosed.
8. In his witness statement (exhibit A2) the applicant refers to three convictions in New Zealand, including in particular a conviction for assault occasioning grievous bodily harm arising out of a “very wild brawl” in 1979 at a town, Moerewa, and after turning 17, he was sentenced to 6 years and 9 months in jail for that offence. Reference will be made later in these reasons to the applicant’s explanation for not disclosing the offences in New Zealand in the citizenship application form. The convictions for assault in New Zealand and Australia meant that the applicant had a substantial criminal record for the purposes of s 501(6)(a) of the Act, since they each resulted in a sentence of imprisonment of 12 months or more: s 501(7)(c).
9. On 5 February 2003 the Department for Immigration and Multicultural and Indigenous Affairs (“DIMIA”) issued the applicant with a notice of intention to consider cancelling his visa pursuant to s 501(2) of the Act (exhibit A1, page 48). The notice advised, in effect, that the grounds on which the visa might be liable to cancellation related to the character test and, in particular, the matters referred to in sub-paragraph 501(6)(a) of the Act (the substantial criminal record ground), sub-paragraph 501(6)(b) (the association ground), sub-paragraph 501(6)(c) (the not a good character ground), and sub-paragraph 501(6)(d) (the ground entailing “significant risk of engaging in criminal conduct or other activities harmful to another person in Australia or to the Australian community”). The notice from DIMIA went on to say that the Department was in possession of information from the INTERPOL and the SAPOL showing that the applicant had a criminal record involving sentences of imprisonment of 12 months or more, and that he was a member of an outlawed group (which was presumably a reference to the applicant’s then membership of the Bandidos Motorcycle Club, to which reference will be made later in these reasons). It said further that the information was protected under s 503A of the Act and could not be divulged to him. The notice then invited the applicant to comment, and the applicant by his solicitors made submissions to DIMIA in response to the notice. These submissions are included in exhibit A1, at pages 35 - 53).
10. A delegate of the respondent decided on 29 October 2003 that there were grounds to cancel the applicant’s visa pursuant to s 501(2) of the Act (exhibit A1, pages 12 - 32), and a notice of visa cancellation was served on the applicant on 16 March 2004 (exhibit A1, pages 5 - 11). The applicant has been held in detention since then.
Legislation
11. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of 12 months or more.
12. Subsection 501(2) provides as follows:
“(2) 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.”
13. Section 503A provides for the protection of information supplied by law enforcement agencies or intelligence agencies. Under subsection 503A(1), if information is communicated to an authorised migration officer by a gazetted law enforcement or intelligence agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under (inter alia) s 501 of the Act, the officer is prohibited from divulging the information to another person, subject to certain exceptions. Under subsection 503A(3), the Minister may, by writing, declare that subsection 503A(1) “does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal.”
Under subsection 503A(5), if a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection 503A(3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).
Subsection 503A(6) provides as follows:
“This section has effect despite anything in:
(a) any other provision of this Act (other than sections 503B and 503C); and
(b) any law (whether written or unwritten) of a State or a Territory.”
Under s 503D, details of the gazetted law enforcement or intelligence agency are to be treated as protected information; by virtue of subsection 503D(1) the agency’s “details” may not be divulged or communicated as if the details were the information communicated by the agency, and under subsection 503D(2), the reference to the agency’s “details” is a reference to any information in relation to the agency, including its name and the conditions on which the communication of the information by the agency occurred.
Evidence
Applicant’s Evidence
14. After giving evidence as to the details of his family as set out in paragraph 6 above and his relationship with them, the applicant said that late in 2002, he and his wife took custody of the four children of his youngest brother who lived in Geelong. He said that he and his wife travelled to Geelong for a family visit, and when they arrived they found that his brother’s children had been made wards of the State as a result of orders made by the Geelong Children’s Court, on the grounds that his brother and his wife were incapable of looking after the children. His brother’s children were then aged 12 months, 2 years, 11 years and 14 years. He said he and his wife approached the relevant Victorian Government department which apparently asked for a police report on the applicant, and also officers came to Adelaide to look at the applicant’s house. Subsequently, the authorities approved custody being given to Mr and Mrs Peters, and they then looked after the children for seven or eight months and treated them as part of their own family. The applicant said that he personally did a lot to help look after the children, and he and his wife worked hard from early morning until late at night to do this. He said that even though they found this very demanding at the time, they also found it a very enjoyable experience and their own children became close to their cousins as a result of this period of living with them.
15. As regards his employment history, the applicant said that after he left school in New Zealand at 15 he worked for just under one year on the railways as a ticket collector, but did not enjoy the work. He then did not work and later served approximately four years and nine months of his term of imprisonment for his 1979 offence. After that and before migrating to Australia, he did casual work as a labourer, worked at a meat plant, and did delivery work. When he arrived in Australia his youngest brother was working for a security company, Protiger Security, and he helped the applicant obtain work for the same company. At first the applicant was given a couple of days work a week at a shopping centre, and then he was assigned to be a security person at the Whitehorse Hotel, Paralowie, and he continued to work there until 1996. He left because, following the conviction for assault in 1995, his security person’s licence was not renewed. He then received unemployment benefits for about four years and then worked for the AMP on a commission basis for about three or four months. He gave up this employment because his remuneration was too uncertain and there were some very lean periods. He then went back on unemployment benefits for a further period, and in August 2003 he went to Sydney and within a few weeks obtained employment on a construction site.
16. In the submissions provided to the respondent by the applicant’s solicitors in response to the notice of intention to consider cancelling his visa, the applicant’s solicitors made reference to his instructions to them regarding his criminal record and the circumstances of the relevant offences (see exhibit A1, at pages 36 - 37). The solicitors said that the applicant’s instructions were “provided in part based on memory and Australian Police records. We have not been able to obtain a New Zealand Police record and it is possible that our client may have omitted minor offences.” The submissions then refer to a conviction in New Zealand in 1979 for assault occasioning grievous bodily harm, and state that the applicant received remissions of two years for good behaviour, and was released early on parole for two years and complied with the conditions of his parole. The submissions state further that he pleaded guilty and expressed his remorse in open court and he was genuinely contrite. It was submitted that he was 17 years of age at the time of the offence, but was dealt with and sentenced as an adult, was in bad company and suffered the influence of those around him. He was released from prison in about 1985 and was determined to stay out of trouble once released. When addressing the Minister’s Direction insofar as it relates to the extent of criminal record and sentences imposed, his solicitors stated that they were “only aware of the one offence from New Zealand”, and proceeded to deal with convictions for offences committed in Australia.
17. In his witness statement (exhibit A2), the applicant referred to two other more minor offences in New Zealand. First, he said that he was involved in a bar-room brawl when he was about 16 years old and as a result was sent to a youth detention centre for about one month. He said that this happened when he was “hanging out” with a group of men who were a lot older than him. He said that before he was sentenced for this charge he was involved in the more serious matter which resulted in the substantial sentence of imprisonment. He said he was with a fairly rowdy group when drinking in a pub at a party, and the police attended and a conflict situation gradually developed, resulting in a “large brawl” with a lot of police there. He thinks that the police over-reacted and they discharged their firearms and shot a couple of members of the group. He says in his written statement:
“I was very intoxicated at the time. My memory of the incident is fairly vague. I remember a very wild brawl developed. I was involved in the violence and I was charged with the offence of assault occasioning grievous bodily harm. I had legal representation and I was advised to plead guilty, which I did. I was surprised at the sentence of 7 years in jail and had no reason to believe that I was going to receive such a severe penalty.”
His witness statement also records that while he was on remand for the charges, he received three months detention at a youth detention centre for fighting in a public place. The statement continues:
“I got remission given for good behaviour and was sent back to Mount Easom prison where I was remanded for about 6 months. Eventually, after turning 17, I was sentenced to six years and nine months in jail in 1980 after pleading guilty.”
His witness statement then describes his experiences in prison including his actions in forming a Maori cultural group, his captaining a gaol rugby league side and his participation in a debating club. He also says that he was 22 years old when he was released from prison, he had missed out on a significant period of his youth and growing up and had missed relationships with his friends and family; his period in prison had been a big blow to him and he was determined to be of good behaviour and, as a result, did not breach his probation.
18. In his evidence before the Tribunal, the applicant explained that he had grown up in a tough neighbourhood in South Auckland, and he used to hang around with a group of people aged between 20 and 40, a lot of whom did not have jobs. He would go to the hotel with them even though he was only 16, and alcohol became a problem. He said it was a hard environment, and a lot of things had changed now.
19. The applicant also referred as follows to convictions for offences in Australia.
(a) Social Security Offence In his witness statement, he said that he was on unemployment benefits before he obtained the security work. At first, the security work was casual, and so he had an entitlement to social security payments depending on his level of income. He was aware, however, that his entitlement would or could be affected by the level of his earnings and that he was obliged to notify the Department of Social Security regarding these matters. He said that he made some telephone calls to the department telling them that his work was increasing, but was told not to worry about it and that the department would tell him if he owed any money. Eventually he was told that he owed about $8,000.00 in social security payments. He said that he kept the social security payments separate from his income because he was unsure whether he was entitled to the payments. He was charged with obtaining social security payments to which he was not entitled and on the advice of his lawyer, he repaid the money to the department and pleaded guilty. He received a sentence of 320 hours of community service, which he carried out.
(b) Assault Occasioning Actual Bodily Harm According to his witness statement, the second offence in Australia was for assault occasioning actual bodily harm for which he received a 12 month suspended sentence. This arose from an incident in April 1995 when he was employed as a member of the security staff at the White Horse Hotel. By then he had been doing that job for about two years and had not had any major problems with the patrons of the hotel, even though it was a very rough hotel and attracted some very violent types. He said a group of men became drunk and unruly and charged at him and two other security people on duty. He said that in the course of defending himself he punched one of his assailants in the face, and he believes that the patron might have been quite seriously injured and suffered a punctured ear drum. There was a trial and he was convicted because, as he understands it, he was found to have used excessive force in defending himself.
(c) Failure to Register Motor Vehicle His next conviction was on 8 July 1998 for failing to register a motor vehicle registered in his name. He was not driving the car at the time. He pleaded guilty and was fined $300.00.
(d) Wearing an Article of Disguise His last conviction was in 1999 when, on advice, he pleaded guilty to wearing an article of disguise and was fined $300.00. He had been stopped by the police on a cold day in the middle of winter and was wearing a balaclava rolled up at the sides, so that he was wearing it as a beanie. He said he had bought this from Cheap as Chips, and did not appreciate that it was unlawful because it could have been used as a disguise. He said he had only ever worn the balaclava as a beanie especially while performing his security work in cold conditions.
20. In his witness statement the applicant said that he deeply regrets that he has offended in the past and has put the matters behind him and intends living an offence-free and family-orientated life in the future.
21. In his evidence before the Tribunal the applicant described in some detail his close relationship with his three children. He said that he had “messed up” his life, but he wanted his children to be well educated so that they could get better jobs, and he said that, with his wife, he had done his best for his children. He said he helped with his children’s education, by going with his wife to reading classes. He described how he had taught his son how to play the guitar and how well he was doing at this, and he also described his youngest daughter’s love of animals and her aspirations one day to be a vet.
22. The applicant gave evidence that he met his wife when he was discharged from gaol in New Zealand. He said that she helped him get back on his feet and to get back into the workforce. When asked to describe his relationship with her, he said that they had been together for 20 years and during that time they had had “ups and downs”. In his written statement he said that during his relationship with his wife in New Zealand there was one period of about three months when they had a break, but they reconciled when they had their second child in 1990 and their relationship “really consolidated” at that time, and their third child was born in 1992. His statement continues:
“My brothers, Mark and Joe, were in Australia at the time and they suggested that I should come over there to work. Julie and I decided that this was a good idea for our family’s future. At the time of leaving New Zealand I had not been involved in any other trouble with police and I had not been the subject of any other police charges and I had my probationary period discharged without any problems.”
He said that their relationship was under pressure during the time when they looked after his nieces and nephews from Geelong and when there was so much work to do. The notification that the Minister was considering cancelling the visa also caused tensions. He also said that there was some pressure on his relationship with his wife from a lot of “police pressure”. He gave evidence that early in 2003, 20 policemen raided his home and searched his home, and this was very upsetting to his family; he asked the police what they were searching for, and was told “guns and drugs, anything”. He said that just after he received the notice that the department was considering the cancellation of his visa (which according to copy letters, at pages 48 - 49 and 68 - 70 of exhibit A1, must have been between 5 and 14 February 2003), he gave up being a member of the Bandidos Motorcycle Club. He said further that at about this time a friend in Adelaide told him that he would be able to get him a job in Sydney, and at that stage he had not worked for a while. He had discussions with his wife and to take the pressure off her, he decided to go to Sydney. He went there in August 2003. In cross-examination he said that he told his wife he was going to separate because he did not think the situation was fair on her or their children, and it would be selfish to stay in Adelaide. He stayed in Sydney and continued to work there, until about seven weeks ago when he was arrested. He said he had returned to Adelaide on a rostered day off and was detained when he was in Adelaide.
23. The applicant said that when he went to Sydney to work he first stayed with a friend of a friend, and later stayed in a hotel. He said that while he was working in Sydney he became involved in a local community project in Redfern for underprivileged children in the area. He said that the union was putting up a building there. He said that he would like to go back and help, and while he could not lay bricks, he could learn on the job and he could do painting work. He said that if he is permitted to remain in Australia he would like to go back to Sydney and work for the same employer, and he thinks he could do this. He said that he would also like to move his family to Sydney, and he has had discussions with his wife about this.
24. In cross-examination the applicant said that when he was working in Sydney he was earning about $850.00 to $900.00 a week. He said that the man he was living with owed about $1,500.00 to his landlord, and to help his friend, he paid about $1,200.00 to $1,300.00 of this debt. He also sent his wife $200.00 to $300.00 a week, and on three occasions sent her $500.00 to pay for his daughter’s course with Prides Business College in Adelaide.
25. In his evidence before the Tribunal, the applicant also said that he had changed his name (from Adrian Sonny Matthews) a couple of years ago, and had done this officially by deed poll. He said that this was related to his membership of the Bandidos Motorcycle Club; when they formed the Bandidos club “things started happening”, involving other Motorcycle clubs. He said that he was not involved in any direct confrontation with members of other clubs, but other members of the Bandidos were and they told him about it. He changed his name because he thought there was a safety issue for his family. He heard of people from other Motorcycle clubs going to the homes of people and causing trouble. Following a phone call at about 2.00 am one morning from a caller who said his name and then hung up, he became concerned and after discussions with his wife he changed his name to Sonny Peters. He acknowledged in cross-examination that his change of name was not referred to in his witness statement, but said he had told his lawyers about this.
26. The applicant gave evidence that he joined the Bandidos in 1999 when the club was established in Adelaide. Before then, he said, the club did not exist in Adelaide. He said that he had always been interested in bikes and went with a mate to Ballarat where he met some members of the Bandidos. He liked these people because they were interested in bikes and were in the same social set as him. He then started spending more time with people who were interested in starting the club in Adelaide and he said there were quite a few interested, about 14 to 20. He said he was admitted as a probationary member, but under the club rules people had to have a motorcycle before being able to become a full member, and he could not afford a bike himself. He said that when joining the club, members had to sign over their bike to the club and if they left within five years of becoming a member their bike would belong to the club. He said that later he commandeered a bike when some people left the club. He said that at its height there were only six full members in the club. He said he resigned in 2003 as a result of receiving the notice from the respondent relating to the possible cancellation of his visa and because the notice said that he was being “thrown out” of the country because he belonged to the club. The Tribunal notes that a letter signed by the applicant and addressed “To whom it may concern” appears at page 13 of exhibit A1, and states that the applicant has “relinquished [his] position and membership in the Bandidos motorcycle club”. In his evidence to the Tribunal, he said that in order to resign he informed a few people, including a local member Stephen Nesteroff and a couple of good friends in Sydney who were also members of the Bandidos. However, the applicant admitted in cross-examination that he still associates with these people and sometimes goes to the pub and has a drink with them.
27. In his written statement the applicant said in relation to the Bandidos:
“Prior to 1999 I knew very little about them as an organization. I had no reason nothing [sic] to believe that the Bandidos were a club involved in organized crime. The club in Adelaide was purely social. The club did not have any involvement in production or sale of illicit drugs. The club did not have any involvement in prostitution. The club did not have any involvement in any form of organized crime.
There have been occasions where individual club members have been charged with fairly minor offences (I can recall that one was charged with having a few marijuana plants, and another guy who had been charged with resisting police arrest). Overall members of the Bandidos there has been very little trouble with the law.
…
I believe that we may have been labeled [sic] by some as being bad because we are a motorcycle club and motorcycle clubs tend to have a bad name.
I resigned as a member of the Bandidos in April 2003. The threat of voisa [sic] cancellation and further police raids on our house convinced me that it was better not to be involved with the club anymore. This was also Julie’s wish .”
28. In cross-examination, the applicant said that he still had the Harley Davidson motorcycle, until about six months ago, before he moved to Sydney. He said the bike was his after five years, and he sold the bike for $15,000.00 and could keep the money. In answer to further questions, he said that this bike was registered in his name about a year ago and previously was registered in the name of a club member who was the previous owner of the bike. He explained further that this was not the bike he had commandeered from the club; he had sold that bike a month or two before he bought his second bike, and he had used the proceeds of sale from the commandeered bike to buy the second bike. When it was put to him that he had not been a member of the club for five years, he said that the rules of the club allowed flexibility and the club had treated him as a member since he first associated with the Bandidos in 1998 or at the end of 1997.
29. In his evidence the applicant said that he learned from his wife of two further police raids of his home. He said that his wife had told him that on the occasion of the first raid, two police officers came to his home and spoke to his wife making inquiries about a car registered in his wife’s name. He was told by his wife that on the second occasion, about four policemen came to his house and told his wife that a phone call had been made from the house to the effect that a murder had taken place in the house. He said that his wife said that the police officers forced their way into the house having said in answer to a question from his daughter that they did not need a warrant, and they appeared to look for something. The applicant said he learned about this raid from his wife the next day when he rang her about 6.00pm to 6.30pm.
30. The applicant was also asked in cross-examination about his application for Australian citizenship in June 2002, and in particular, about his failure to disclose his New Zealand convictions. He said that when he picked up the form from the department, he told the counter girl that he had police problems, and she said “In Australia”, so he took it from that that he only had to disclose his Australian convictions. In re-examination, he said the woman told him: “In Australia, just put it down but you must tell us everything that has happened in Australia”. He said that when he later filled in the form, he was not trying to deliberately conceal his New Zealand problems from the department, and he would have included the New Zealand matters if he had been aware that that was required.
Evidence of Julieanne Peters
31. The applicant’s wife says in her witness statement (exhibit A5):
“I have always found my husband Sonny to be a kind nice and friendly person and I have never been under the impression that he was a bad guy or a violent person. He is certainly a big man, but from my experiences he is a very gentle thoughtful person. He also has a good sense of humour, is warm and talkative. He has a very nice personality.”
She confirmed in evidence that the applicant has an extremely close relationship with all three of his children and was a very good father. She described their family as a very happy and close-knit one, and said that the applicant’s detention had been devastating for all the family. Mrs Peters confirmed that she and her husband very much enjoyed taking care of her four nieces and nephews and that their children formed a very close relationship with these cousins.
32. She said that since she had been in Australia she had not worked, but had been a full-time mother and performed home duties. She said that she is one of 10 children but she is only close to one sister and she has had disagreements with her family because she has become a Jehovah’s Witness. Partly for this reason she has no desire to return to New Zealand on a permanent basis.
33. Mrs Peters said that her husband was not involved in a motorbike club when they lived in New Zealand but became involved when they came to Adelaide, but she was not sure how or why. She says in her witness statement:
“At no stage did I believe that it was any more than a club or that Sonny was involved in any type of criminal activity, and in particular the production of drugs or crimes of violence. I had always made my position clear that I would not tolerate Sonny being involved in these types of things. We agreed, however, that if he did want to be involved in such a club that he would do so outside the family house. For that reason I never met more than a couple of his fellow Bandito club members, and the ones that I did meet seemed like very normal people.
I was therefore never under the impression that the Bandito’s were involved in any criminal activity despite the fact that motorcycle clubs were generally branded as being involved in organized crime. There was certainly no evidence that Sonny was making any money out of any type of illegal activity. I am sure that I would have noticed if he was.”
She added later that in all the time she has been with her husband he had never been more than a social drinker, did not take drugs, and she was sure that he was not involved in any sale of illicit drugs. In cross-examination, Mrs Peters agreed that her husband was still associating with club members even though she had wanted him to stay away from his friends in the club. She also said in evidence that she did not know much about motorcycle clubs and only became aware of criminal associations with clubs recently. When asked about her stipulation that she wanted her husband’s involvement with the club to be outside of the house, she said that she did not want her son to ride bikes and did not want him to be influenced.
34. As regards her relationship with the applicant, she said that on the whole she has enjoyed a very happy marriage. However, she described the police raid that occurred at the beginning of 2003 and said that this caused significant stress on their relationship. Further, after the notice came from the department, the uncertainty of what would happen caused conflict and tension between them, and their marriage was under a lot of pressure. She said after discussing the matter with her husband they decided that it would be better if they separated for a while on the understanding that this would not be permanent. It was decided that he would go to Sydney for the purpose of finding work and holding a job. She said that after her husband went to Sydney, nearly every night he spoke by telephone to her and the children, and occasionally he came to Adelaide for short visits.
35. In her witness statement she said that in recent times she had had to consider what she would do if her husband’s visa cancellation was maintained and he was removed from Australia. She said:
“It is likely that in the long term I might relocate with the children, but this would certainly take quite a time.”
She went on to explain that her eldest daughter was settled in her job and the two other children were doing extremely well at school and she was reluctant to take them out of Adelaide. She said that Australia was now like their home.
36. In her evidence before the Tribunal, she said that while her husband was living in Sydney, she and her children went there on a visit and they liked Sydney. She had discussions with the applicant about moving there and thought that she would like to do so, but they wanted to investigate such things as the schooling for the children and the cost of housing, and this would all take time to organise. She said that if her husband was permitted to remain in Australia and took a job in Sydney, the intention would be for her to go there some time later and she believed her marriage would survive. However, (contrary to what she said in her witness statement) she said that if he had to go back to New Zealand, she did not think that she would make a move back there and that would probably break the marriage.
37. Mrs Peters also gave evidence in relation to the three police raids at the family house. She said the third raid occurred very recently, about two to two and a half months ago at most. She said she was very upset and the children were upset. She said she rang her husband that night and he came to Adelaide the next day. She said that it was raining (presumably in Sydney) and so her husband could not start a new job, and he had stayed in Adelaide for about four days, when he was detained by the police.
Evidence of Bianca Matthews
38. In her evidence, the applicant’s daughter, Bianca Matthews, confirmed that she was enjoying her job with the UTLC very much. She said she would not like it if her father were sent back to New Zealand, and in that event she would not like to go back to New Zealand, because it was hard to find work there. She confirmed that she had a close relationship with her father. She said the applicant was a “great father” who had always been there and had just protected the family and wanted the best for her and her siblings. She said that her mother, brother and sister had found the applicant’s absence from the family in detention very stressful. She also confirmed that her parents had worked hard during the time they looked after the four children from Geelong, and that she and her brother and sister were close to their cousins in Geelong and also Port Augusta. In her witness statement (exhibit A3), she described her father as a “very gentle and nice man” and a “very loving and caring father” who spends a lot of time with each of his children and is “a very fun person to be with”. Her statement further confirms that he takes a lot of interest in everything the children do, including their schooling and her employment.
Evidence of Jackie Weston
39. The witness Jackie Weston gave evidence that he first met the applicant whilst they were both working as commission agents for the AMP, and that he later became a close friend of the applicant and their families saw a lot of each other and socialised together. He said there was a very strong bond between the applicant and his wife, and he spoke very positively of the qualities of the applicant’s children. He said that at one stage he had just left a job, sometime after he left the AMP, and asked the applicant for a loan of $500.00, which he later paid back. He also said that he became aware that the applicant had joined the Bandidos Motorcycle Club, but saw no indication of any adverse change in his character or evidence of involvement with alcohol, or drugs or easy money. On the contrary, he had given the applicant loans of $300.00 to $400.00 at a time over the last three or four years, which the applicant always paid back.
40. The Tribunal notes that in some respects, the evidence from Mr Weston differed from that of the applicant. Mr Weston said that he left the AMP in 1998 and the applicant had left about six months earlier, in 1997, and he thought that the applicant had started at the AMP in 1995 and left in 1997, although, he added, it might have been 1996. He also said that after the applicant left the AMP he did casual work in security. He was asked how he knew this and said that the applicant told him of it, and kept in contact, that this was fairly regular work and that was “possibly” how the applicant could loan him the money.
41. The Tribunal has recited the substance of the evidence adduced in support of the application. The Tribunal found that the applicant was evasive in some aspects of his evidence, such as for example, his participating in and resignation from the Bandidos Motorcycle Club, and his wife’s reaction to his joining the club. He gave conflicting descriptions (that is “fairly minor offences” and later “serious charges”) when describing the activities of some members of the club. There is a direct conflict between the evidence of the applicant and his wife as to their communications and the applicant’s actions following the last of the police raids. There is also a discrepancy between the evidence of the applicant and Mr Weston as to the length of the applicant’s employment with the AMP and whether he was employed after he left the AMP; this means that either the applicant was untruthful or Mr Weston was mistaken as to these matters, and if Mr Weston was mistaken (as may well be the case) this would impact on the reliability of Mr Weston’s evidence as to how well he knew the applicant and his family, and his assessment of the applicant’s character. The Tribunal accordingly has reservations as to the truthfulness and reliability of the applicant’s evidence, and will refer later in these reasons to its findings where the Tribunal does not accept the evidence before it, or where it is necessary to make specific findings of fact in relation to issues raised by the Ministerial direction which the Tribunal must take into account as a guide to making its decision in this matter.
Use of Protected Information
42. As mentioned above, the Tribunal has received in evidence certain protected information, namely the information in exhibits R2, R3, R4 and R5. The respondent applied to tender exhibit R3 almost one month after the conclusion of the hearing, but explained that the gazetted agency from which the relevant information had come had only very recently, and of its own initiative, consented to the further protected information in this exhibit being made available to the four persons named in one of the declarations referred to in paragraph 3 above. Exhibits R4 and R5 were tendered on a further resumption of the hearing this day, and these provide further information as to matters included in exhibit R3. Counsel for the applicant strongly objected to the late tender of exhibits R3, R4 and R5, and to the Tribunal’s indulgence in extending the time in which exhibits R4 and R5 were tendered. The Tribunal took the view that it should be as fully informed as possible before making its decision, and had asked the respondent to clarify certain aspects of the protected information. The Tribunal was told that the respondent was not able to tender the information earlier, because of the late receipt of the information from the relevant agency. The Tribunal is satisfied that the applicant has not been prejudiced by the lateness of the tendering of exhibits R3, R4 and R5. By virtue of s 503A(5) and s 503D(1) of the Act, the Tribunal must not divulge or communicate the information in these exhibits to any person other than the Minister or a Commonwealth officer. This means that neither the applicant nor the applicant’s advisers can be made aware of the information in question. The prohibition on divulging the information would, apart from the provisions of s 503A(6), raise issues as to whether the non-disclosure of the information would constitute a breach of natural justice or procedural fairness. During the course of the proceedings and after hearing submissions from counsel for the applicant on whether this was appropriate, the Tribunal excluded all other persons from the hearing room and explored with Messrs Prince and Kennedy whether it was possible to inform the applicant at least of the generic nature of the information, in order to ensure that procedural fairness was observed as far as possible. However, after hearing submissions from the respondent’s counsel, the Tribunal decided that it was not possible to provide any such generic information to the applicant or his advisers without infringing the relevant sections of the Act.
43. It appears that s 503A overrides the rules of natural justice and procedural fairness in relation to the use of protected information. In Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 203 ALR 320, Gray J said at [13]:
“The purpose of s 503A of the Migration Act is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa. There is little doubt that, on the application of the ordinary principles of natural justice, an applicant for a visa, or a person whose visa the Minister is considering cancelling, and whose character is in issue, would be entitled to adequate notice of, and an opportunity to respond to ‘adverse information that is credible, relevant and significant to the decision to be made’ (per Brennan J in Kioa v West (1985) 159 CLR 550 at 629; 62 ALR 321 at 380). The fact that the information was supplied by a body, agency or organisation responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence would tend to suggest that it fell into this category. Further, the effect of subss (6) and (8) of s 503A is to override specific statutory rights, under both federal and state legislation, which would otherwise entitle a person to receive information about himself or herself held by a government agency.”
His Honour’s analysis was endorsed by Jacobson and Bennett JJ in the recent decision of Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 at [91].
44. In the present matter, it appears that the delegate who made the original decision had access to additional protected information which has not been provided to this Tribunal on the hearing of these proceedings. This would appear to be inconsistent with the role of the Tribunal to review the primary decision, and to arrive at a correct or preferable decision. The Tribunal appreciates that the respondent must consult with the relevant law enforcement or intelligence agency from which the information originated before divulging it to this Tribunal. However, it would clearly be preferable for this Tribunal to receive all of the information possessed by the original decision-maker in all cases where that information is relevant to the issues before the Tribunal. The Tribunal suggests that DIMIA should explain this to the agency concerned whenever there is an application to this Tribunal to review a delegate’s decision, so that the Tribunal will be fully informed as to the facts on which the delegate’s decision was based.
45. Counsel for the applicant submitted that in determining the weight and use to be made of the protected information, the Tribunal should assess the inherent quality of the information, and take into account that the material was untested, in the sense that there had been no opportunity for the applicant to comment on or contradict the information. By way of illustration counsel contrasted incontrovertible information, such as video tape evidence, with hearsay information from a police officer or informant, where there were risks of the information being untruthful, exaggerated or otherwise unreliable. As against this, counsel for the respondent submitted that if the Tribunal were to treat the protected information with less weight than the information would otherwise be entitled to, because it was not divulged or communicated to the applicant, then that would amount to an improper attempt to avoid the clear intention of Parliament by imposing sanctions in connection with the exercise of the Minister’s discretion, and counsel cited Minister for Immigration and Multicultural and Indigenous Affairs v Ball (supra) per Dowsett J (dissenting) at [30], as well as other passages from Evans v Minister for Immigration and Multicultural and Indigenous Affairs (supra).
46. The submission of the respondent’s counsel seems to be taken primarily from Ball, where the issue depended on the application of s 503A in a case where the Minister personally made a decision under s 501(2) to cancel the respondent’s visa, and the Court held that to require the Minister in those circumstances to provide the protected information to the respondent would be to impose sanctions in connection with the exercise of the Minister’s discretion. The Tribunal accepts that it would defeat the clear intention of Parliament if the Tribunal were to disregard the protected information on the grounds that it could not be made available to the applicant or tested in the traditional forensic manner. However, whilst this extreme approach would not be permissible, the Tribunal is nevertheless required to evaluate all of the evidence before it, including the protected information. In performing this function the Tribunal considers that it would be appropriate to take into account whether it has been possible to give the applicant an adequate opportunity to comment on or if appropriate, challenge the protected information, and if this is not possible, the weight and evidentiary value of the information concerned will be affected, depending on its nature and whether the information is such that it is inherently reliable. It seems to the Tribunal that its task in the present matter is to evaluate all of the evidence before it, and that the evidence which is protected information should be evaluated in accordance with the above approach. The Tribunal is satisfied that the applicant had a sufficient opportunity in his evidence-in-chief to address the protected information, and that the cross-examination of the applicant in relation to the protected information was taken as far as it could be taken without infringing s 503A and s 503D of the Act.
Consideration of Ministerial Direction No. 21
47. Whilst Mr Griffin for the applicant conceded that the applicant failed the character test, he submitted that the discretion under s 501(2) of the Act should be exercised in the applicant’s favour, and that his visa should not be cancelled. By virtue of s 499(2A), in considering this issue, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”) (being a Direction made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501). Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I now consider the relevant considerations in the Direction in turn.
48. The three primary considerations in Direction No. 21 are as follows:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
49. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
50. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)) or a lighter sentence would have been imposed in Australia (paragraph 2.8(c)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
51. The convictions for assault in New Zealand in 1979, and in Australia in 1995, fall within the category of offences considered by the Government to be very serious. The respondent contended that the conviction in 1994 for obtaining the social security benefits to which he was not entitled constituted serious theft (which expressly includes “white collar” crimes) within the meaning of paragraph 2.6(l) of the direction; however, whilst it is true that crimes of this sort no doubt cause disruption to the Government, the sentence imposed suggests that the offence was not regarded as serious, and the Tribunal concludes that this conviction does not constitute a very serious offence or conduct of the serious nature ordinarily required in order to raise concerns about protection of the Australian community. However, the assault convictions are in a different category. Whilst, as the applicant submitted, there is no evidence before the Tribunal as to the scale of penalties for assault in New Zealand at the relevant time, and whilst the applicant was apparently sentenced as an adult rather than (as would have been the case in Australia) as a juvenile, it would nevertheless appear to be reasonable to infer from the penalty imposed that the Court regarded the offence as a very serious one. Further, the administration of justice in New Zealand shares a common heritage with that in Australia, and the Tribunal would not expect there to be a significant disparity between the sentencing standards of the Supreme Court in New Zealand and the standards adopted in Australia. The penalty for the 1995 assault conviction in Australia was, however, lenient and indicates that the offence was not regarded by the Court as serious, and this would be consistent with the applicant’s explanation as to the basis of his conviction, namely that he used excessive force in self-defence.
52. The Tribunal considers that the applicant’s criminal record cannot be treated as insignificant. His evidence before the Tribunal refers to three offences in New Zealand, and since he arrived in Australia, he has four further convictions, for a variety of offences. It was submitted on behalf of the applicant that in view of his explanation as to some of the offences, he would have had a defence to the prosecutions. However, the Tribunal cannot go behind the convictions : Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575. Further, it would not have been competent for the applicant to proffer to the Courts which recorded the convictions, a version of the facts which would have constituted a defence to a prosecution, if (as was the case except for the assault charge) he had entered a plea of guilty. Whilst the applicant may present to the Tribunal matters pertaining to the convictions, it is not permissible to contradict the essential facts which must be established to constitute the relevant offences : Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N205. The Tribunal does not accept in full the applicant’s explanation for the more minor offences committed in Australia, to the extent that this explanation would mean that the applicant was not guilty of the offences concerned. The Tribunal also refers to the analysis of the relevant authorities by Branson J in Minister for Immigration v Ali (2000) 106 FCR 313 at [41] to [45], where her Honour dealt with an appeal against an order by this Tribunal setting aside a deportation order made by the Minister under s 200 of the Act on the grounds of the non-citizen’s convictions. At [45], her Honour said:
“Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.”
The Tribunal has approached the relevance of the applicant’s previous convictions in accordance with these observations.
53. Whilst it is true that the last conviction was recorded a little over four and a half years before the applicant was detained following the cancellation of his visa, the applicant admits to four convictions for diverse offences during his twelve years in Australia including one conviction for assault, and one serious conviction in New Zealand for which he was sentenced to a substantial term of imprisonment.
54. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. The applicant’s criminal record in New Zealand includes a serious offence and is therefore significant, and he has regrettably committed a number of offences since he came to Australia. As against this, his last conviction was in 1999, and he gave evidence (which the Tribunal accepts) of his desire to participate in a project to assist under-privileged children in Redfern, Sydney, if he is permitted to remain in Australia.
55. The respondent contended that the applicant’s failure to disclose his New Zealand convictions in his 1992 application for citizenship form constituted a breach of s 50 of the Australian Citizenship Act 1948, which makes it an offence for a purpose of or in relation to that Act, to:
“(a)make … a representation or statement that is, to the knowledge of the person, false or misleading in a material particular; or
(b)conceal … a material circumstance.”
The respondent referred to the comments of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 that:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa application when dealing with the many reasons for coming to Australia.”
Similar reference to the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is only known to the person making the statement, was referred to in Re Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780. The applicant explained the circumstances which gave rise to his omission to disclose his convictions in New Zealand, and the Tribunal is mindful that he was not prosecuted or convicted for an offence arising from his omission. The respondent did not seek to challenge the applicant’s explanation, and advised the Tribunal that it had been unable to identify the officer referred to by the applicant. However, even on the applicant’s own evidence to the Tribunal on this aspect, he merely disclosed that he had “police problems”; he did not disclose to the departmental officer that he had convictions in New Zealand, and in particular did not disclose to the officer the serious nature of those convictions or the significant penalty imposed. His disclosure to the officer was in the Tribunal’s view inadequate, and he could reasonably be said to have concealed a material circumstance contrary to s 50(b) of the Australian Citizenship Act. Further, when he later completed the form, he should not in the circumstances have relied on the response by the officer, who had not been fully informed of the position, to omit any reference to his New Zealand convictions. Alternatively, he should have qualified his response to question 43 of exhibit R1 by stating that he had included only his Australian convictions.
56. The Tribunal is also concerned that the applicant became a member of the Bandidos Motorcycle Club. He attributes his criminal behaviour in New Zealand at least in part to his having been associated with the “wrong kind of people”. Notwithstanding this, and notwithstanding his wife’s concern about his continuing to associate with members of the Bandidos Motorcycle Club, he did so. He became aware of difficulties from other clubs soon after the Bandidos established a branch in South Australia, and this apparently caused him considerable concern to the point where he found it necessary to change his name by deed poll, yet he did not resign as a member of the club until much later. He claimed in evidence to have resigned in April 2003. However, he and his wife admitted in evidence that he had continued apparently up until the time of his detention to associate with club members. Whilst he said that he was not aware that the club was involved in any illicit activities when he first became involved with the club, he admitted in evidence that he later found out that some members were involved in such activities, and yet even then, once again, he did not then resign from the club.
57. Taking into account all of the above matters, the Tribunal considers that there is some likelihood of the applicant being involved in further unlawful conduct, and also a real risk of recidivism.
58. General Deterrence The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). As a general rule, the cancellation of a person’s visa where a person migrating to Australia with a criminal record continues to offend should have the effect of preventing or discouraging other persons from committing offences after they come to Australia. Of course, the extent of any such deterrence would depend on the publicity given to any cancellation of a visa. In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of the applicant, including other members of the motorcycle club, and that may provide some deterrence to other persons. 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.
Second Primary Consideration – Expectations of the Australian Community
59. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. As Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], there would also be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination. This further increases the potential extent of diversity of views within the Australian community, and adds to the difficulty of the decision-maker in formulating the expectations of the Australian community in a particular matter.
60. In the present matter, the Tribunal has taken into account the assessment made by the persons who have provided character references for the applicant, and the applicant’s role in his immediate family and his wider family, including in particular his willingness to assist his brother’s children after they had been made wards of the State. However, as appears from paragraph 2.12 of the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. The applicant admits to a conviction for a serious criminal offence before coming to Australia, and to having committed a number of offences since arriving here. Further, he continued to be associated with the Bandidos Motorcycle Club notwithstanding the circumstances previously referred to, which should reasonably have led him to sever his connection with the Bandidos earlier than he did. The Tribunal considers that the above considerations weigh against the applicant in the exercise of its discretion.
Third Primary Consideration – Best Interests of a Child or Children
61. The Tribunal accepts the evidence before it as to the important and responsible role the applicant has had in his children’s upbringing, and that he is loved and respected by his wife and children, who are permanent residents of Australia. The Tribunal also takes into account the age of the children, the time they have spent in Australia (that is, in the case of his son, all of his life, and in the case of his second daughter most of her life), the circumstances of the receiving country as far as this is known to the Tribunal, and the fact that there would be no language barriers for the children in New Zealand. Further, there is no evidence that there would be any cultural barriers for the children if they went to New Zealand.
62. There is a conflict of evidence before the Tribunal as to what would happen if the visa is cancelled. However, on the witness statement provided by Mrs Peters, it appears likely that she would relocate to New Zealand with her children. The applicant and Mrs Peters said in their evidence to the Tribunal that family relations are strong, and the Tribunal finds that it is likely that the family would in fact relocate to New Zealand in the event of cancellation of the visa. In considering this factor, the Tribunal also notes that the applicant separated from his wife and children in August last year, and then lived and worked in Sydney. The Tribunal further finds that if the applicant’s visa is not cancelled, the family intends to move to Sydney on a permanent basis, but is not yet in a position to relocate, because of the need to make suitable arrangements for accommodation and schooling. The family will therefore be disrupted and the children will be deprived of the applicant’s presence in the family for an indefinite period if the visa is not cancelled. The Tribunal accordingly concludes that the cancellation of the visa would not necessarily be contrary to the best interests of the children.
Other Considerations
63. The Tribunal now refers to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, the Tribunal takes into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
64. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. It is noted that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the Minister by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCR 268, and other authorities there discussed). (It is also noted that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant : see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326.) It appears that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 now includes the word “generally”, whereas previously the corresponding paragraph of Direction No. 17 omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
65. The Tribunal has concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
66. The first of the other relevant considerations is “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community” (paragraph 2.17(a)). In the present matter, the Tribunal has considered the issue of the disruption to the applicant’s family and refers in this regard to paragraphs 61 and 62 above. If the visa is not cancelled, the applicant’s immediate family would be disrupted in any event by the proposed relocation to Sydney. This is likely to disrupt the employment of the applicant’s eldest daughter (who is now over 18, and whose situation is not therefore taken into account under the third primary consideration). Further, a relocation to Sydney would disrupt the schooling of the two younger children. There will, in any event therefore, be significant disruption to the immediate family, whether or not the visa is cancelled. The applicant has no business ties to the Australian community, so that that issue is not material in the present matter. The Tribunal accepts, however, that there would be disruption to the applicant’s wider family, taking into account the evidence as to the relationship with the wider family in Australia, which evidence the Tribunal accepts. The Tribunal also accepts and takes into account that the applicant is estranged from his sister in New Zealand, and that Mrs Peters is estranged from her brothers and sisters, except for one sister in New Zealand. In this matter the issue of rehabilitation does not arise, and the Tribunal repeats its earlier remarks as to the conduct of the applicant in Australia in relation to its consideration of any recent good conduct (see paragraph 2.17(h) of the Direction). The Tribunal also takes into account in the applicant’s favour that the applicant had not formally been advised in the past by an officer of MIMIA about conduct which brought him within the visa refusal and cancellation provisions prior to the decision to cancel the visa.
67. The Tribunal takes into account that there is a genuine marriage between the applicant and a permanent resident (paragraph 2.17(b)). In considering the degree of hardship which would be caused to immediate family members lawfully residing in Australia (paragraph 2.17(c)), reference has been made above to the likelihood that Mrs Peters and her children will return to New Zealand. It is accepted that this will cause hardship to Mrs Peters, because she has made her home in Australia and would prefer to continue to reside here. However, her existing way of life in Adelaide will, on the Tribunal’s findings, be disrupted whether or not the visa is cancelled, as mentioned above.
68. The Tribunal has taken into account all of the evidence before it, including the protected information which it has evaluated in the manner referred to in paragraph 46 above, and which is considered in supplementary confidential reasons for decision provided to Messrs Prince and Kennedy this day. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, but also having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, the Tribunal has decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be not be exercised in the applicant’s favour, and accordingly the visa should be cancelled. The decision under review is accordingly affirmed.
I certify that the 68 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 5, 6 and 7 May and 4 and 8 June 2004
Date of Decision 8 June 2004
Counsel for the Applicant Mr M A Griffin
Solicitor for the Applicant Hyams and Associates
Counsel for the Respondent Mr R J Prince
Solicitor for the Respondent Australian Government Solicitor
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