Re Toia and Minister for Immigration and Citizenship
[2007] AATA 2078
•20 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2078
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4873
GENERAL ADMINISTRATIVE DIVISION )
Re PATRICIA CAROL TOIA
Applicant
AndMINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
TribunalMr Julian Block, Deputy President
Date20 December 2007
PlaceSydney
DecisionThe decision under review is affirmed.
……………[sgd]……………………...
Mr Julian Block
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of applicant’s absorbed person visa – failure to pass character test – prior cancellation of applicant’s visa affirmed by Tribunal – prior decision affected by jurisdictional error – further offences committed – concession that applicant does not pass character test – relevance of age of applicant at time of entry into Australia – evidence of applicant’s family circumstances, alcohol and illicit drug use and medical condition – risk of recidivism – consideration of the protection and expectations of the Australian community – consideration of impact on family – consideration of hardship – decision under review is affirmed
RELEVANT ACT/S
Migration Act 1958 – s 501, 501G
CITATIONS
Re Toia and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1142
Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544
Re Hong Teng Ung and Minister for Immigration and Multicultural Affairs [1998] AATA 833
Pochi v Macphee (1982) 151 CLR 101
Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198; (1993) 40 FCR 493
OTHER REFERENCES
Direction – Visa Refusal and Cancellation under section 501 – No. 21
REASONS FOR DECISION
20 December 2007
Mr Julian Block, Deputy President
PART A - preliminary and introduction
1. The decision under review is the cancellation by a delegate of the Respondent of the Applicant’s Absorbed Person Visa (and which is referred to as “the Visa”). The date of the decision to cancel the Visa was 28 September 2007; notices of the delegate’s decision to cancel her visa were given to the Applicant on 2 and 5 October 2007 and the Applicant applied for the review of that decision on 8 October 2007. The Respondent’s delegate considered that the Applicant did not pass the character test and exercised the discretion set out in s 501 of the Migration Act1958 (“the Act”) to cancel the Visa. The Respondent’s delegate was bound by the Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“Direction No. 21”) in considering the exercise of the discretion under s 501 of the Act.
2. The Respondent’s Statement of Facts and Contentions (“SoFaC”) dated 27 October 2007 contains under the heading “Facts” a chronological survey of relevant facts and events and reading as follows:
FACTS
15/07/78 Ms Toia was born in New Zealand (G3). 28/09/79 Ms Toia arrived in Australia as a New Zealand citizen (G3). 17/03/93-13/2/98 Ms Toia was convicted of numerous offences including using a weapon to avoid arrest, resisting arrest, stealing and assault (G4, pp 25-38). 13/03/98 Ms Toia was convicted of two counts of Assaulting a Police Officer In Execution of Duty and sentenced to a fixed term of 4 months (G4, p34). 19/05/98 Ms Toia was convicted of:
· two counts of Using an Offensive Weapon To Prevent Apprehension and sentenced to a term of 6 months on each count;
· Malicious Wounding and sentenced to a minimum term of 6 months; and
· Stealing and sentenced to a term of 21 days (G4, pp 36-37).
17/03/99-11/04/03 Ms Toia was convicted of numerous offences and sentenced to various terms of imprisonment for 16 of those offences. The terms of imprisonment ranged from one to six months and the offences included:
· Shoplifting;
· Possession of Prohibited drug;
· Custody of a Knife in a Public Place;
· Assault;
· Maliciously Inflicting Grievous Bodily Harm;
· Assault Police Officer in Execution of Duty; and
· various driving offences (G4, p39).
08/08/03 Ms Toia was convicted of:
· Possess Implements To Enter/Drive Conveyance Taken Without Consent of Owner and sentenced to a term of 12 months;
· Drive Conveyance Taken Without Consent Of Owner and sentenced to a term of 3 months;
· Custody Of Knife In Public Place and sentenced to a term of 3 months;
· three counts of Goods In Custody Reasonably Suspected Of Being Stolen and sentenced to 3 months;
· Drive While Disqualified from Holding a Licence and sentenced to a term of 12 months; and
· Shoplifting Value < $2000 and sentenced to a term of 6 months (G4, p63).
30/07/04 The Department of Immigration and Multicultural and Indigenous Affairs ("Department") purported to cancel a Special Category visa believed to have been held by Ms Toia under section 501 of the Migration Act 1958 ("Act"). 17/08/04 Ms Toia applied to the Administrative Appeals Tribunal ("Tribunal") for review of the 30 July 2004 decision. 02/11/04 Tribunal affirmed the Department's decision to cancel Ms Toia's Special Category Visa under section 501 of the Act (G7, pp 114-143). 29/11/04 Ms Toia applied for a Protection Visa under section 65 of the Act. 02/12/04 The Department refused Ms Toia's application for a Protection Visa. 24/03/05 Ms Toia sentenced to multiple terms of imprisonment (three separate terms of 3 months) for charges which had been laid before the purported cancellation of her Special Category visa and the Tribunal proceedings. The offences included:
· two counts of Shoplifting Value < $2000; and
· Goods in Personal Custody Suspected Being Stolen (G4, pp 64 - 66).
20/10/05 The Department received internal legal advice to the effect that Ms Toia never held a Special Category visa but rather held an Absorbed Persons visa. The 30 July 2004 decision of the delegate and the 2 November 2004 decision of the Tribunal were, therefore, effected by jurisdictional error (G5, pp 77 - 82). 20/10/05 Ms Toia informed by way of letter that the Department's 30 July 2004 decision was affected by a jurisdictional error and that she holds an Absorbed Persons visa. 03/04/06 - 30/04/07 Ms Toia was sentenced to multiple terms of imprisonment totalling 16 months. The offences included:
· Goods in Personal Custody Suspected Being Stolen;
· Possess Prohibited Drug (9 counts)
· Shoplifting Value < $2000; and
· various driving offences (G4, pp 66-71).
05/07/07 Ms Toia received a Notice of Intention to Consider Cancellation ("NOICC") regarding her Absorbed Persons visa from the Department (G8, pp 144-149). 28/09/07 Ms Toia's Absorbed Persons visa was cancelled pursuant to section 501 of the Act by a delegate of the Minister for Immigration and Citizenship ("Minister"). 02/10/07 Ms Toia was notified of the delegate's decision to cancel her Absorbed Persons Visa. 08/10/07 Ms Toia applied to the Tribunal for review of the delegate's decision.
3. The Tribunal had before it the “G documents” being those documents required to be provided to the Applicant by the Respondent with the notification of the decision to cancel the visa pursuant to s 501G of the Act, and in addition accepted the tender of exhibits as follows:
Exhibit A1:A statement by the Applicant dated 28 November 2007;
Exhibit A2:A statement by Mr Hamish McLelland (undated but executed on the first day of the hearing);
Exhibit A3:A Curriculum Vitae of Dr Dong Binh Tran;
Exhibit A4:A report by Dr Tran dated 16 April 2007;
Exhibit A5:A statement by Ms Lynn Elizabeth Pickersgill (undated but executed on the second day of hearing);
Exhibit A6:A pre-sentence report prepared by Kylie Powers, Probation and Parole Officer, dated 12 February 1998;
Exhibit A7:A supplementary pre-sentence report prepared by Robert Steuart, Probation and Parole Officer, dated 9 April 1998 and report dated 23 March 1998 by Dr Robert Lewin;
Exhibit A8:Report by Dr Michael Giuffrida dated 17 March 2000;
Exhibit A9:Opinion by Dr Jonathan Carne dated 4 December 2001;
Exhibit A10: Report by Michael Simonovic, Probation and Parole Officer, dated 10 March 2004;
Exhibit A11: Report by Zenon Luczak, Clinic Nurse Consultant, dated 27 September 2006;
Exhibit A12: Report by Dr Ravi Sohal dated 27 August 2007;
Exhibit A13: Statutory declaration by the Applicant dated 15 September 2004;
Exhibit A14: Statement by Clint Patrick Winters dated 8 September 2004; and
Exhibit A15: Statement by Bonnett Davidson dated 1 September 2004.
4. The decision of this Tribunal (Deputy President Walker) issued on 2 November 2004 in the matter of the Applicant and the Minister for Immigration and Multicultural and Indigenous Affairs (case number N2004/1048) appears at G7 (pp114-143). In respect of that decision, which is referred to as the “Prior Toia Decision”:
(a)Clause 4 sets out the Applicant’s criminal convictions up to August 2004 as follows:
Court date Court Offence Sentence 31.8.1993
Cobham Childrens Court
Stealing
Without conviction probation 12 months, supervision Juvenile Justice Branch
11.10.1993
Lidcombe Childrens Court
Public Mischief
Fine $80
12.10.1993
Cobham Childrens Court
Robbery with striking
Six months control order from 29.9.1993
15.12.1993
Windsor Childrens Court
1. Assault
1. ADJ Gen
2. Robbery
2. Control order 10 months
(on appeal on 11.2.1994 the Penrith District Court confirmed the conviction, in lieu enter recognisance without surety good behaviour, supervision of Juvenile Justice Brach, accept counselling
31.5.1994
Cobham Childrens Court
Larceny
Fine $250
2.5.1995
Cobham Childrens Court
Larceny
Fine $300, court costs $46
4.3.1997
Blacktown Local Court
1. Larceny
1. Convicted s 60AA, warrant to issue
2. Assault
2. Warrant to issue
3. Assault occasioning actual bodily harm
3. Warrant to issue
5.8.1997
Blacktown Local Court
Receiving
Fine $200, court costs $51
11.8.1997
Blacktown Local Court
1. Steal property in dwelling house
2. Maliciously destroy or damage property
3. Break enter building
4. Commit felony (steal)
1-4. Not before court, warrant to issue
18.11.1997
Blacktown Local Court
Common assault
Fine $150, court costs $51, compensation $16
13.3.1998
Maitland Local Court
1. Assault police officer in execution of duty (x2)
1. Fixed term four months commencing 15.2.1998
2. Use offensive language in/near school
2. Fine $1, court costs $51
3. Resist officer in the execution of duty
3. Rising of the court
4. Resist officer in execution of duty
5. Custody of an offensive implement in a public place
4-5. Recognisance s 588, fine $500, 18 months to accept supervision of NSW Probation Service
19.5.1998
Penrith District Court
1. Use offensive weapon to avoid apprehension (x2) (Bench warrant)
Sentenced on both counts to minimum term six months commencing 15.2.1998 concluding 14.8.1998 additional term with conditions: 12 months commencing 15.8.1998 concluding 14.8.1999. Release subject to supervision (matters taken into account on form 1)
2. Malicious wounding
2. Minimum term six months commencing 15.2.1998 concluding 14.8.1998 additional term with conditions: 12 months commencing 15.8.1998 concluding 14.8.1998 release subject to supervision (matters taken into account on form 1)
3. Stealing (first instance warrant)
3. Fixed term 21 days commencing 19.5.1998 concluding 9.6.1998
14.12.1998
Blacktown Local Court
1. Shoplifting
2. Maliciously destroy or damage property
1-2. Convicted s 80AA, warrant to issue.
4.1.1999
Blacktown Local Court
1. Drive without licence on road
2. Driver, special category, exceed special range
1-2. Convicted s 80AA, warrant to issue
3. Drive unregistered vehicle with number plates on to deceive
4. use uninsured motor vehicle on road
3-4. Fine $750, court costs $52
17.3.1999
Blacktown Local Court
1. Stealing
1. Fixed term three months commencing 11.3.1999
2. Possess prohibited drug
2. Recognisance $1,000, 15 months supervision NSW Probation Service
3. Driver state false name
3. Fine $400, court costs $52
4. Driver never held licence
4. Recognisance $1,000, 15 months, disqualification for three years
5. Malicious damage
5. Fine $300, court costs $52
6. Drive with special range concentration of alcohol
6. Fine $300, court costs $52, disqualification for six months commencing 17.3.1999
7.12.1999
Kogarah Local Court
1. Use unregistered vehicle
1. Fined $400, court costs $54
2. Possess prohibited drug
2. Fined $400, court costs $54
3. Use unregistered vehicle
3. Fined $400, court costs $54.
4. Use unregistered vehicle on road area
4. Fined $700, court costs $54
5. Use unregistered vehicle on road
5. Fined $700, court costs $54
27.1.2000
Blacktown Local Court
1. Goods in personal custody reasonably suspected of having been stolen
2. Use unregistered vehicle on road area
3. Driver of vehicle displaying unauthorised number plate
4. Driver of vehicle displaying misleading registration label
5. Use unregistered motor vehicle
1-5. Convicted s 80AA, warrant to issue
20.4.2000
Sutherland Local Court
1. Drive whilst disqualified
1. Imprisonment one month commencing 20.4.2000, disqualification two years commencing 20.4.2000
2. Drive whilst disqualified
2. Imprisonment one month commencing 20.4.2000, disqualification two years commencing 17.3.2000
3. Driver/rider state false name or address
3. Fined $200
4. Goods in personal custody reasonably suspected of being stolen
4. Imprisonment one month commencing 20.4.2000
5. Use unregistered vehicle on road area
5. Fined $400
6. Use uninsured motor vehicle
6. Fined $400
7. Driver/rider state false name or address
7. Fined $200
8. Uninsured motor vehicle
8. Fined $400
9. Unregistered motor vehicle
9. Fined $400
10. Goods in custody
10. Imprisonment one month commencing 20.4.2000
11. Plates calculated
11. Fined $100
12. Misleading registration number
12. Fined $100
10.8.2000
Bankstown Local Court
Drive whilst disqualified
Imprisonment six months (sentence confirmed on appeal by the Campbelltown District Court on 13.10.2000)
26.7.2000
Waverly Local Court
Drive whilst disqualified
Fined $750, court costs $56, disqualification two years
30.8.2000
Parramatta Local Court
1. Goods in personal custody reasonably suspected of being stolen
2. Custody of knife in public place
3. Trafficking prohibited drugs in correctional centre
1-3. Convicted s 25(2), warrant to issue
13.10.2000
Campbelltown Local Court
Shoplifting
Imprisonment three months commencing 10.8.2000 concluding 9.11.2000
21.11.2000
Sutherland Local Court
1. Use offensive language in/near school or public place
1. Fined $100, court costs $56
2. Assault person with intent to resist/prevent apprehension
3. Resist officer in execution of duty
4. Shoplifting
5. Goods in personal custody reasonably suspected of being stolen
2-5. Imprisonment four months commencing 21.11.2000
11.1.2001
Parramatta Local Court
1. UNL/obtain goods (personal custody)
2. Have custody of knife in public place
1-2. Imprisonment three months commencing 20.11.2000 concluding 19.2.2001
16.7.2001
Downing Centre Local Court
1. Possess prohibited drug (x2)
1. Convicted s25(2) warrant to issue
2. Breach bail conditions – application to redetermine
2. Bail Order made
20.7.2001
Downing Centre Local Court
Possess prohibited drug
Fined $500, court costs $58, drug to be destroyed
30.7.2001
Central Local Court
Possess drugs (x2)
Fined $250, court costs $58 for each count
27.8.2001
Central Local Court
Possess prohibited drug
Rising of the court. Drug to be destroyed.
3.5.2002
Downing Centre Local Court
1. Possess prohibited drug
1. Bond 12 months supervision NSW Probation Service, continue treatment with psychiatrists
2. Goods in personal custody reasonably suspected of being stolen
2. Imprisonment five months suspended on enter bond five months
3. Custody of knife in public place
3. Fined $400
4. Goods in personal custody reasonably suspected of being stolen
4. Imprisonment three months suspended on enter bond three months
22.5.2002
Manly Local Court
1. Shoplifting
2. Custody of knife in public place
3. Drive whilst disqualified
4. Goods in personal custody suspected of being stolen
1-4. Convicted s 25(2) Warrant to issue
16.7.2002
North Sydney Local Court
Drive whilst disqualified
Convicted s 25(2) Warrant to issue
7.8.2002
Manly Local Court
1. Assault officer in execution of duty
2. Resist officer in execution of duty
3. Drive whilst disqualified
4. Goods suspected of being stolen in/on premises
1-4. Convicted s 25(2) Warrant to issue
11.4.2003
Parramatta Local Court
1. Drive on road when licence cancelled
1. Imprisonment five months suspended on enter Bond: five months, disqualified for driving commencing 17.3.2009 concluding 16.3.2011
2. Driver/rider state false name or address
2. Rising of the court
3. Common assault
3. Imprisonment five months suspended on enter bond five months
4. Assault police officer in execution of duty
4. Imprisonment five months suspended on enter bond five months
5. Possess prohibited drug
5. Rising of the court
6. Drive using hand-held mobile phone
6. Rising of the court
7. Shoplifting
8. Custody of knife in public place
9. Goods in personal custody suspected of being stolen
7-9. Bond two years supervision NSW Probation Service, accept supervision of Parramatta Community Health Service. Attend on Dr Stanley as directed and follow all directions in relation to medication
10. Resist officer in execution of duty
10. Imprisonment five months suspended on enter bond five months
11. Drive on road when licence cancelled
11. Bond two years supervision NSW Probation Service, accept supervision of Parramatta Community Health Service. Attend on Dr Stanley as directed and follow all directions in relation to medication. Disqualification commencing 17.3.2011 concluding 16.3.2013
12. Drive whilst disqualified
12. Imprisonment five months suspended on enter bond for five months. Disqualification commencing 17.3.2015 concluding on 16.3.2017
13. Drive whilst disqualified
13. Imprisonment five months suspended on enter bond five months, disqualification commencing 17.3.2017 concluding 16.3.2019
4.6.2003
Balmain Local Court
1. Shoplifting
2. Goods in personal custody suspected being stolen (x2)
1-2. Bench Warrant to issue
8.8.2003
Blacktown Local Court
1. Possess implements to enter/drive conveyance
1. Imprisonment 12 months commencing 13.6.2003, non-parole period with conditions: six months. Release subject to supervision. Psychiatric treatment as directed by Probation and Parole. Drug and alcohol counselling and treatment as directed by Probation and Parole.
2. Unlawfully possess ETC a prescribed restricted substance
2. Rising of the court. Drug to be destroyed.
3. Drive conveyance taken without consent of owner
4. Custody of knife in public place
5. Goods in personal custody suspected of being stolen (not motor vehicle) (x2)
6. Goods in personal custody suspected of being stolen (motor vehicle)
3-6. Imprisonment three months commencing 13.6.2003
7. Drive whilst disqualified
7. Imprisonment 12 months commencing 13.6.2003, non-parole period with conditions six months. Release subject to supervision. Psychiatric treatment as directed by Probation and Parole.
8. Shoplifting
8. Imprisonment six months commencing 13.6.2003
29.9.2003
Parramatta Local Court
1. Drive whilst disqualified
1. Imprisonment five months commencing 13.6.2003
2. Drive whilst disqualified
2. Imprisonment five months commencing 13.6.2003
26.6.2004
Blacktown Local Court
Wilfully mark premises without consent
Fined $500, court costs $61
19.8.2004
Blacktown Local Court
Shoplifting
Convicted s 25(2) warrant to issue
25.8.2004
Parramatta Local Court
1. Goods in personal custody suspected of being stolen
2. Shoplifting
Bail unconditional
(b)Clauses 5 to 10 of the Prior Toia Decision read as follows:
5.Between 30 March 1998 and 11 October 2003, while Ms Toia has been in prison, she has had 42 prison offences recorded against her (G14 p105), including since 2001:
Hearing date Offence
30/10/2003 Intimidation
13/10/2003 Fail to attend muster
19/9/2003 Interfere with correctional centre property
11/9/2003 Fail to comply with correctional centre routine
26/8/2003 Fail to attend muster
17/8/2003 Damage and destroy property
14/8/2003 Intimidation
18/7/2003 Throw article
6/7/2003 Fail to attend muster
4/7/2003 Intimidation
17/6/2003 Intimidation
17/6/2003 Assaults
21/6/2003 Intimidation
20/12/2002 Assaults
1/10/2002 Intimidation
3/8/2002 Intimidation
4/8/2002 Damage and destroy property
31/1/2001 Abusive language
15/2/2001 Drugs in urine
12/1/2001 Not comply with routine
6.On 9 December 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, advised Ms Toia that the Minister was personally considering cancelling her special category visa on the grounds of her substantial criminal history and past and present criminal conduct (G5). At that time, Ms Toia was imprisoned at the Mulawa Correctional Centre.
7.On 10 March 2004, an officer of DIMIA, New South Wales Compliance Cancellations, informed Ms Toia that a delegate of the Minister would be making the decision as to whether or not to cancel her visa and that the matters to be taken into account in making the decision would be her New South Wales criminal history, the Judge’s comments made in relation to her criminal conviction at the Penrith District Court on 19 May 1998 and her sentence administration report concerning her offences committed during her incarceration. The officer also provided Ms Toia with the opportunity to comment on the intended cancellation of her visa prior to 24 March 2004 (G8).
8.On 11 March 2004, an officer of DIMIA, New South Wales Compliance Cancellations, advised Ms Toia that she would also be taking into account, a report from Mr Michael Simonovic, New South Wales Probation and Parole Service, dated 10 March 2004. The officer also extended the time for Ms Toia to comment until 26 March 2004 (G9).
9.On 24 March 2004, Ms Toia attended upon an officer at DIMIA’s office at Parramatta and made submissions to that officer including, inter alia, that she has been in Australia since 1979, her visa should not be cancelled because Australia is her home and she does not know anywhere else except Sydney, she does not want to be deported because she has “changed her life a bit more than I ever have”, she has a brother in Blacktown and uncle and aunt living in Lakemba and that she has “stopped the drugs and crime. I am looking for a job and a place to live on my own” (G12). Subsequently she was convicted of several further shoplifting and goods in custody offences in July and August 2004.
10.On 30 July 2004, a delegate of the respondent decided to cancel Ms Toia’s visa on the basis of her substantial criminal record and past and present criminal conduct and having decided to exercise her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel her visa. Ms Toia was informed of the decision by letter dated 11 August 2004 (G15). On 17 August 2004, Ms Toia lodged an application for a review of the decision by the tribunal.
(c)Deputy President Walker dealt with the important question of recidivism (and other relevant factors) in clauses 37 to 43 of the Prior Toia Decision reading as follows:
Protection of the Australian Community
37.The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case the applicant has a lengthy criminal and driving-related record dating from 1993. This record includes terms of imprisonment for using an offensive weapon to prevent apprehension, resisting arrest, stealing, driving while disqualified, having goods in custody suspected of being stolen, being in custody of a knife in a public place, and driving when licence cancelled. Paragraph 2.6 of the direction states that crimes involving violence or the threat of violence should be treated as very serious. The applicant has convictions for assaulting a policeman in the execution of his duty, common assault and malicious wounding. She also has convictions relating to the possession of prohibited drugs (heroin) and the trafficking of prohibited drugs (heroin). Paragraph 2.6 of the direction also states that drug dealing offences are to be treated as very serious. The applicant has approximately 11 drug-related convictions, including for trafficking prohibited drugs into a correctional centre (G p50). Mr Levingston described her dossier as consisting mainly of “nuisance offences”. That is true only of some of them, and in any event the sheer volume of violations is very serious in itself.
38.When asked about the several convictions she had for possessing a knife in a public place, she replied that she only carried it because she was always being taken from behind and assaulted, sexually or otherwise. She felt secure when she had the knife, that nobody could touch her. It was only for her own protection. But the law no longer accepts the legitimacy of such grounds. The High Court held in Taikato v The Queen (1996) 186 CLR 454 that a woman’s well-founded fear of attack was not a reasonable cause or excuse for possessing even a non-injurious irritant spray. In any event Ms Toia used a knife with a seven inch (18 cm) blade to threaten arresting police, not for self-defence, and in the process wounded a security guard.
39.Next, the tribunal is to consider the risk of recidivism. This applicant is a repeat offender who has regularly been before the courts since 1993, coming under the control of the Juvenile Justice Branch in August 1993 when she was only 16. She earned her first prison sentence in 1998 at the age of 21 and has spent much of the last six years in custody.
40.Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. On that criterion alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future. Mr Levingston conceded that history suggested a high risk of recidivism in Ms Toia’s case, but pointed out that Mr Simonovic had thought there was hope for the future. The level of seriousness of the offences she was committing was abating and there was less drug-related behaviour. With support and attention from the right people she would be amenable to change because the visa cancellation proceedings had made her aware of the risk of deportation that she faced. The itinerant lifestyle that had contributed to her wrongdoing could be changed if she could accept Ms Davidson’s offer of accommodation and support. She deserved a chance to avail herself of the available help and communication, but if she committed further offences removal would be justified.
41.Yet her claim that her most recent offences result from her overdosing on Serepax may indicate a continuing vulnerability to drugs of one kind or another. It is not easy to see how an overdose of tranquilizers would make a person more likely to break the law, and the explanation may be ex post facto rationalisation. But it does show a continuing propensity for the casual abuse of drugs. On behalf of the Minister, Mr Chand contended that there was a history of a large number of serious and minor offences on a continuous and repetitive basis, they were just not nuisance crimes and had contributed to much social disturbance. There was no clear evidence that she was unlikely to re-offend, and indeed she had committed more crimes since receiving the notice of intent to cancel her visa in December 2003, even though she had claimed that there had already been a change in her thinking. Mr Simonovic thought that Ms Toia would welcome help and rehabilitation if the conditions were supportive for her and that she had prospects for a better life in those circumstances. He realised that her recent offences might tend to conflict with that assessment but said he was not sure under what conditions she committed them or what was her state of optimism at the time.
42.The essence of the problem seems to be that she may accept reform and rehabilitation, but only on her own terms. She has rejected successive attempts to help her for a variety of reasons, such as not wishing to discuss her problems with strangers, not liking the group of other inmates who would also be taking the course, or simply dismissing the idea on the basis that she would not make a success of it. In those circumstances the community cannot be expected to go on offering Ms Toia successive opportunities to avoid the long-term consequences of her actions. It was argued on her behalf that she had been created by us (ie Australian society) and that our intervention had made her problems grow and fester. That kind of argument appears to rest on older deterministic theories of crime causation that are no longer generally accepted. Contemporary research shows that individual calculation and choice play a much larger role in crime trends than had previously been thought (see L. Siegel, Criminology, 4th edition, West Publishing, 1992 p131; C. Buchanan, P. Hartley, Criminal Choice, Centre for Independent Studies, Sydney 1992). Mr Simonovic’s evidence rather pointed to the problem mentioned when he said that her decisions on whether or not to break the law might depend on her state of optimism at the time, and if it were adverse she might tend to lash out. She has no marketable skills and appears never to have engaged in gainful employment. Ms Toia herself said that crime for her was sometimes the only way to pull herself up. It therefore seems likely that there is a real risk that she will continue to offend in the future.
43.The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is another factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 para 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating criminal activity. Mr Levingston argued that given the apparent relationship between the abuse of alcohol and drugs and the offending behaviour in this case, the need for general deterrence may not in fact operate effectively. The proposition that those who abuse alcohol or drugs are not amenable to deterrence is not supported by empirical evidence and in this case is conjectural (see Re Sam (supra)).
(d)The cancellation of the Applicant’s visa was affirmed.
5. As appears from the Respondent’s SoFaC under the head of “Facts”, and as set out previously in these reasons (at paragraph 2 above of these reasons), the decision which gave rise to the Prior Toia Decision was affected by jurisdictional error in that the Applicant held an absorbed person visa, rather than the visa described in the Prior Toia Decision. Accordingly, and in October 2005, the Applicant was released from immigration detention in Villawood.
6. In the Prior Toia Decision, Deputy President Walker had found that there was a real risk of recidivism. During the period April 2006 to April 2007, the Applicant was sentenced for a number of further offences to multiple terms of imprisonment totalling 16 months. Those offences are referred to as “the post immigration detention offences”. [The types of post immigration detention offences committed by the Applicant are set out, in general terms, in respect of the period 3 April 2006 to 30 April 2007 in the Respondent’s SoFaC and set out earlier in these reasons.] After serving a non-parole period of approximately 11 months, the Applicant was released on parole but because of the decision now under review, then immediately placed in custody in Villawood where she remains. The details in respect of the post immigration detention offences are, as recorded at G4 (pp.24-76) on 18 April 2007, as follows:
Court date
Court
Offence
Sentence
27/12/2005
Parramatta Local Court Kings Cross
Breach of bail – application to re-determine
Bail order made: (ba 65734)
07/01/2006
Parramatta Local Court Kings Cross
Breach of bail – application to re-determine
Bail order made : (ba45734)
03/04/2006
Central Local Court Kings Cross
1. Drive while disqualified from holding a licence
1. Imprisonment: 12 months commencing 07/01/2006 non parole period with conditions: 6 months release subject to supervision on parole in particular drug and alcohol supervision, disqualification: 2 years commencing 16/03/2053
2. Possess prohibited drug (4 counts)
2. Imprisonment: 1 month commencing 07/01/2006
3. Goods in personal custody suspected being stolen (not m/v)
3. Imprisonment: 1 month commencing 07/0/2006
27/07/2006
Mt Druitt Local Court Commuter Crime Unit Parramatta
Possess prohibited drug
Fine: $500 costs – court: $67 drug to be destroyed:
21/08/2006
Downing Centre Local Court Kings Cross
Possess prohibited drug
Convicted s25(2) warrant to issue:
02/09/2006
Parramatta Local Court Kings Cross
Warrant w 61465143 executed for charge h 27821626 (conviction – 61465143)
Warrant executed:
05/09/2006
Downing Centre Local Court Kings Cross
Breach of bail – application to re-determine
Bail order made:
16/09/2006
Parramatta Local Court Blacktown
Breach of bail – application to re-determine
Bail order made:
25/09/2006
Downing Centre Local Court Kings Cross
1. Possess prohibited drug
1. Fine : $200 costs – court: $67 drug to be destroyed:
2. Fail to appear in accordance with bail undertaking (conviction – 61465143)
2. Offence not proceeded with (lcrt 308)
25/09/2006
Downing Centre Local Court Kings Cross
Possess prohibited drug
Fine: $200 costs – court: $67 drug to be destroyed:
27/09/2006
Blacktown Local Court Blacktown
Possess prohibited drug
Bond s9: 2 years supv nsw prob service further conditions as set out in the report from Luczar dated 27/09/2006
Possess prohibited drug
Bond s9: 2 years supv nsw prob service further conditions as set out in the report from Luczar dated 27/09/06 drug to be destroyed:
15/10/2006
Parramatta Local Court Blacktown
Police bail: bail refused
Breach of bail – application to re-determine
13/12/2006
Central Local Court Kings Cross
Breach of bail – application to re-determine
Bail order made:
21/03/2007
Ryde Local Court Gladesville
Shoplifting value <=$2000-t2
Convicted s25(2) warrant to issue:
30/04/2007
Blacktown Local Court Blacktown
Court bail: bail refused
Drive while disqualified from holding a licence
7. It may be noted that the Applicant conceded that she did not pass the character test. Such a concession was of course correctly made, having regard to s 501(7)(d) of the Act; the Applicant has been sentenced to 30 terms of imprisonment totalling in aggregate over 15 years (although many terms were served concurrently). It may be noted that the Applicant has, as regards driving a motor vehicle, been disqualified from holding a licence until 2060.
8. As set out previously, Deputy President Walker found that there was a real risk that further offences would be committed. Apart from the post immigration detention offences, the Applicant breached parole conditions on various occasions and was guilty of numerous disciplinary offences while in custody. See in particular clause 20 of the Respondent’s SoFaC reading as follows:
20.The Minister notes that in the Tribunal's decision dated 2 November 2004, Deputy President Walker stated that it "seems likely that there is a real risk that she will continue to offend in the future" [G7, p140]. Since that decision Ms Toia has been convicted of a further five offences, breached parole conditions on numerous occasions and spent more than a year in prison. At the date of the delegate's decision, Ms Toia was imprisoned in the Mulawa Correctional Centre, Silverwater. Ms Toia's Sentence Administration Report indicates that, during her periods of incarceration, she incurred a total of 56 internal offences (G10, pp 160-162). Thirteen of these internal offences occurred in 2006 / 2007. The Minister, therefore, contends that Ms Toia's conduct since 2004 confirms the Tribunal's earlier view that the risk of recidivism is high.
9. At the hearing, the Applicant was represented by Mr Michael Seck of counsel instructed by Mr M Coorey, a solicitor acting as agent for Mr S Hawach, a migration agent. The Respondent was represented by Mr Anthony Orford of Clayton Utz, solicitors.
10. Evidence was given by each of the Applicant (Exhibit A1), Mr McLelland (Exhibit A2), Dr Tran (Exhibit A4) and Ms Pickersgill (Exhibit A5). It will be noted, though, that Mr Seck tendered, without objection by Mr Orford, a large number of reports and statements, and in respect of which it was not intended that the persons concerned would be called to give evidence. Those reports and statements were tendered, so Mr Seck said, on the basis that an inference may be drawn from the pattern of psychiatric assessments and treatments recommendations. Those reports and statements must therefore, and of necessity, be of limited relevance.
11. Mr Seck made it clear that, so far as medical evidence was concerned, the Tribunal should have regard only to the evidence of Dr Tran, and not to any other medical reports contained in the documents tendered. The Tribunal agrees that it should have regard to Dr Tran’s evidence, and notwithstanding the fact that his report was based on only about an hour with the Applicant, because it was Dr Tran only who gave evidence before the Tribunal. It may be noted that there are discrepancies between Dr Tran’s report (Exhibit A4) and other reports of a similar nature. There are references in the latter to schizophrenia and, indeed, the Applicant herself spoke of her schizophrenia. Dr Tran, however, was firm in his view that the Applicant does not suffer from schizophrenia, or for that matter any other mental disability of such a nature that she could be required against her will to undergo any form of medical treatment.
12. There is one other aspect which can conveniently be dealt with at this juncture. The Applicant who (as some of the exhibits, and in particular Exhibits A6, A7 and A8, indicate) presents as being of Maori appearance and origin, came to Australia when she was one year-old. (The Applicant herself described herself as a Maori to Dr Lewin in Exhibit A7). The Prior Toia Decision gave rise to press comment critical of the Prior Toia Decision and, in particular, contained critical remarks by senior politicians in New Zealand. The Tribunal was handed an article from The Sydney Morning Herald website dated 17 December 2004 headed “Australia to send ‘one-woman crime wave’ to New Zealand”. The Tribunal indicated to Mr Seck that it did not consider that the remarks of New Zealand politicians, however senior, should be regarded as relevant and did not admit The Sydney Morning Herald article as an exhibit. That the Applicant came to Australia when she was only a year old is a relevant factor, which must be taken into consideration but it has no greater relevance than that. In this regard:
(a)In Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544, the Applicant came to Australia at the age of eight and was 25 at the time of the hearing. Deputy President Bannon QC made the following observations at 547:
…
The view I have formed is that the applicant is a problem. He has a very bad criminal record and as such there is a risk that he may offend again. However, I have come to the reluctant conclusion that the applicant has become Australia’s problem. It was not by his conscious volition that he arrived in Australia at the age of eight years. …
(b)Following Deputy President Bannon’s remarks in Gogebakan, the then Minister, in discussing the decision, said in parliament (on 8 December 1988):
…
A sensitive issue which also arises from time to time concerns the liability for deportation of an adult who arrives in Australia as a minor. Clearly, the time a person has been in Australia and the degree of connection persons have with their country of origin are relevant factors in coming to a decision on whether or not a non-citizen resident ought to be deported when the person has offended against the laws of Australian society. The view has occasionally been expressed that persons who have migrated to Australia when they were minors ought never be deported. This is not consistent with the legislation or Parliament's intentions. I share concerns about the desirability of deportation in these cases but in many we are dealing with an offender who embarked on a life of crime as a child and who pursues that life into adolescence or adulthood. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crime, I believe a decision to deport must seriously be entertained.
…
(c)The views of Deputy President Bannon that a person who came to Australia when very young would become Australia’s problem, was put to rest in Re Hong Teng Ung and Minister for Immigration and Multicultural Affairs [1998] AATA 833 where Mathews J as President of this Tribunal, said in clauses 50, 51 and 52:
50.Much of the Minister's comments have since been incorporated into para 20 of the deportation policy statement, issued in December 1992. Even before the revised statement was issued, Deputy President Bannon's comments in Gogebakan were subject to judicial criticism. In Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145 Keely J made the following observation in relation to Gogebakan:
The reference to deporting "children" is a reference to persons who had been children on arrival in Australia. The applicant in that case, who was 25 years old at the time of the hearing, was described by the Tribunal as having "a very bad criminal record" and as one who "may offend again" - the latter being a matter which the Tribunal regarded with "considerable anxiety". Notwithstanding those observations, the Tribunal did not explain on what basis it concluded that it was not "in the best interests of Australia" to deport persons who arrived as "children" but later have been convicted of serious crimes. In my opinion there are great difficulties in reconciling that statement with the principle enunciated by Brennan J, in Re Salazar-Arbelaez (supra), that it is the "duty of the Tribunal ... to assess whether a particular applicant is at an unacceptable level of risk": see also Re Loh (at 162) where the Tribunal stated that the risk of recidivism is a matter which must be considered by the Tribunal. (p 150)
51.Since then, as already indicated, the deportation policy statement has been re-issued. Paragraph 20, quoted earlier in these reasons, incorporates much of the then Minister's statement relating to Gogebakan, and emphasises that where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered notwithstanding that the person arrived in Australia as a minor.
52.Accordingly the legal and policy considerations relied upon by Mr Turner in his submissions before me are no longer as one-sided as they at one time appeared to be. Certainly the fact that the applicant arrived in this country as a young child is an important consideration. It must be assumed that many of the influences which led to his anti-social behaviour were encountered locally. His parents have apparently done all they can in an endeavour to counter these influences, unfortunately with little success. However the overriding consideration, as stressed in the policy statement, is the need to protect the Australian community against the criminal behaviour of non-citizens.
(d)See also in this context Pochi v Macphee (1982) 151 CLR 101 cited in Hong Teng Ung (at 47).
PART B - the evidence of the applicant
13. Exhibit A1 reads as follows:
1.I was placed into the Mulawa Correctional Centre on 13 June 2003 until 21 March 2004 for prior offences which are set out in my criminal record. This included Possessing implements to enter drive conveyance, possess ETC a prescribed restricted substance, drive conveyance without consent of owner, custody of knife in public place, Goods in custody, and drive while disqualified. During the time in goal I had no visits from either family members or friends. My contact in gaol was minimal as I was in maximum security even though I carry a C2 classification which allows me to to go to any other gaol I was left at Mulawa as there was no room anywhere else.
2.Upon my release on 21/3/04 I lived out on the street a lived in refuges around the Sydney city area.
3.I was not in contact with anyone in my family until the last proceedings when there were newspaper reports about my immigration case.
4.I had met with Bonnet Davidson was my guardian for a time while out of prison in or about 2004 and she seemed to take some interest in me. I have had a rough childhood and did not think to contact my brother and sister in Australia.
5.While in gaol, I attended church meetings, did an anger management course and obtained my fork lift license. I attempted to complete my year 10 high school certificate but was unable to continue as I was transferred to the gaol in Kempsey.
6.While at Kempsey I did a hairdressing course which I finished. I also undertook drug and alcohol counseling while there.
7.I was in Kempsey when released. From Kempsey I went straight to Sydney and spent my first night at Bonnet Davidson’s place in Blacktown.
8.I estimate that between July 2004 and 11/8/04 I was out on street.
9.I was unable to stay at her house and lived on the streets for a period of about a month before I was picked up by compliance officers regarding my visa.
10.My first detention at Villawood detention centre lasted between 11/8/04 until 20/10/05. I still do not understand why I was let out of the detention centre with all the newspapers reporting on my position.
11.I did go back to Bonnet’s house and completed parole later. I was at Bonnet’s house for about 3 months or so and I continued to stay with her during the probation period and attended my probation officer at Blacktown.
12.While on probation I had an argument with Bonnett and due to her drug use she attempted suicide and was placed in Bungarrabie section of the Blacktown Hospital Mental Health.
13.After that I ended up on the street again around Kings Cross – as before.
14.B/W October 2005 at Bennett’s taking drugs.
15.In about April 2006 I was back out on the street after an argument with Bonnet.
16.After my release from detention I ate at soup kitchens and slept at Women’s Refuges “Women’s Place” in Flinders Street in the City. If I was unable to stay there I would attend the Church in Kings Cross where the priest let us sleep outside on the stairs.
17.I first met my boyfriend Hamish McCelland on 21 December 2006[.]
18.During this period I was still in receipt of the Dole – which I picked up at Centrelink in Kings Cross.
19.I was still taking drugs over this period which consisted mainly of amphetamines, marijuana and heroin. I was always depressed. I did not work. I didn’t see any regular doctors except for the counselors I would come across while at the shooting rooms in Kings Cross.
20.For Christmas I went out partying alone[.]
21.It was during this time that on or about 26/12/05 I was busted by the police for a number of offences. This included possession of drugs and driving a bloke’s car without his permission. I still do not understand what happened as he had offered to sell me the car and I wanted to test drive it to see what was wrong with it. I was pulled up by the coppers within one minute of getting behind the car.
22.I was taking cocaine and amphetamines at the time.
23.For my other offences around this time I was caught with a couple of bags of marijuana in 12/06, 2 little bags.
24.I went to court for that at different times.
The other offences included:
25.7/1/06 Possession problem – marijuana again.
In custody with her friend’s social security card.
6/7/06 drugs, marijuana or heroin.
31/7/06 at court I had Legal aid.
Most possession of drugs was for Small amounts only and for my own use.
26.Majority of time I would have stick of pot and rarely have powder on me, for the following offences:
3/9/06 – marijuana
15/9/06 – Marijuana
28/2/07 shoplifting. Bottle of wine at Ryde Top Mac’s Liquor/Woolworths St Henri’s 1998 – Penfolds
27.On 3/3/07 I was with Hamish and he was falling asleep on the wheel of the car. We were driving home from Blacktown to Campbelltown. He almost crashed the car. I decided that I should drive and as soon as I got behind the drivers seat and not for more than 1000 meters I was stopped by the police.
28.For these crimes I was sentenced for a further period of about 6 months from 3/07 and was at the Mulwa Correctional Centre up until being released on 11/09/07 (?)
29.From Mulawa I was placed into detention at Villawood straight away.
30.While in detention my fiance Hamish visits almost every day. I have also been trying to get back in contact with brother (Harmira) and sister (Maraea) through Red Cross without any success yet.
31.My mother died on 26/1/04 in New Zealand and my father died on 15/2/04 also in New Zealand. I was not aware of their deaths as no one informed me.
32.The only reason I ended up speaking to my sister Maraea during my first detention was because of the newspaper articles.
33.I have lost all their details after the last argument I had with Bonnet when the she burnt my paperwork.
34.Last time spoke to brother last year 2006, around September – not since.
35.He doesn’t know I’m here.
36.I started the methadone program – after my miscarriage in May 2007 – I was taken to the hospital in Mulawa.
37.Since then I take 50mls everyday which I take at 11:30am.
38.I no longer have the urge to take drugs and intend to stay on it.
39.Continue to attend church after I converted from being a Muslim to Christianity went in 2007. I continue to be visited by Lynne who was the pastor at Mulawa and she still still attends here I trust her and rely on her for spiritual support.
40.I still smoke cigarettes 15-20 per day.
41.Known Hamish for a year now and have been engaged for about 9 months ago, he doesn’t work and is aged 27.
42.When while at Mulawa I did not have regular psychiatrist visits however the
43.–Mental health team diagnosed me with schizophrenia.
44.I do not however receive regular treatment at the Detention centre now. I have not be prescribed with any drugs except the methadone.
45.As far as I am aware I have Family in NZ but I have no idea how to contact them and I have never spoken to them.
46.I can’t say that there has been any one in particular being a bad influence in my life but that I had a very rough upbringing. I must just accept responsibility for my own problems.
47.I used to blame my parents – as I used to get hit a lot as they didn’t know I was a lesbian – stayed with my girlfriend most of the time and would get a hiding for staying out too long.
48.Stopped living with parents when I was 13.
49.I spent most of my time at the RiverstoneCommunity Centre which is where I was introduced to drugs.
50.Mary was the counselor there who would allow us to play and do fun things like art etc.
51.She recommended and put me into the Hayshed Refuge in Windsor.
52.I do have other relatives in New Zealand being half brothers/sisters I know their first names but do not know them, nor have I ever been in contact with them. My Grandparents have passed away.
14. Although Exhibit A1 is reasonably comprehensive, the evidence in chief of the Applicant took up most of the first day of the hearing. During that period, the Tribunal asked a few questions. Mr Orford did not, when the examination-in-chief was complete, think it necessary to ask any questions in cross-examination.
15. The Applicant was born in New Zealand in July 1978. She came to Australia in 1979 with her parents, John Christopher Toia and Sophie Toia. Three siblings also came to Australia; Hiria (a sister) is now back in New Zealand. Maraea (another sister) and Hamana (a brother) are, she thought, still in Australia, but she does not know where they are or how to contact them. She has endeavoured to make contact with her sister, Maraea, through the Red Cross, but without success. In fact, the evidence revealed that for many years and ever since she was about 13, the Applicant has had little contact with her parents or her siblings.
16. The family settled at first in Brisbane and then when the Applicant was four or five, moved to New South Wales. The Applicant was frequently in trouble at school; this was so in particular because she played truant. She was expelled from one school when she hit the principal, apparently when he was attempting to cane her. At the age of 13, the Applicant left school never to return. She said that her relationship with her father was close until he died and that this was so also of her relationship with her mother, although that relationship “had its ups and downs”. (The Tribunal here notes that this evidence as to a close relationship with her parents appeared, having regard to other evidence, to be distinctly dubious).
17. The Applicant said that she was sexually abused by a friend of her father and while they were living in a caravan park in Brisbane. She said that there were about five such occurrences and moreover that they involved different persons. The Applicant said that one of the perpetrators, Ken Brown, also assaulted her sister Hiria. The Applicant did report the incidents but said that she did not receive any counselling. She said that these incidents “haunt me every day”.
18. The Applicant has lived away from home ever since she was 13. She had become involved with “street kids” and stayed at times with friends. She got into trouble while staying with one friend and ended up in a juvenile detention centre.
19. The Applicant said that as regards money, she received the home away allowance. She has had three jobs all of about three months duration; one job was as a kitchen hand, another was as a packer at a Dick Smith company and a third was at a plant nursery. Those jobs were obtained when she was about 19 and since turning 20 she has never been employed and has lived on social security payments. Mr McLelland in his evidence spoke of her having a forklift driver’s certificate, but she said nothing of any such qualification, and having regard to her driving record, Mr McLelland’s statement in this regard must be of doubtful validity.
20. At the age of 13, the Applicant became involved with drugs and in particular marijuana and amphetamines (speed). Drugs were used regularly often daily and sometimes more than once daily. They were often provided by friends. There was no period, so she said, when she was not addicted since she was 13 years old. Drugs were obtained even when she was in jail. She said that she took them to relax her and because she “I stresses a lot”. She said also that she heard voices, especially when she took quantities of drugs and alcohol.
21. The Applicant’s drug addiction problem increased and she began taking heroin and cocaine. She first took heroin about four years ago, but her cocaine addiction dates back to when she was 20 years old.
22. When the Applicant was released from Villawood in 2005, she used drugs of all kinds, and in particular was addicted to heroin and marijuana. She said that she paid for drugs from her dole money. (The Tribunal doubts whether at a cost of $50 a “fix” for heroin, her dole would have been sufficient to sustain her addiction.) She did say also that friends gave her drugs.
23. The Applicant also drank heavily and from an early age. Indeed, the quantities involved are surprisingly large involving at times a case of beer a day and at times a bottle of whiskey daily. She said that with the exception of her mother, all of her family drank.
24. The Applicant said that she drank because she liked it. At one time she embarked on a 12 months’ rehabilitation program (at Selah Farm) but left after four months. She said that she did not like the heavy emphasis, at Selah Farm, on religion. She said that she felt that she was being pushed into religion.
25. She stated that she formed her first relationship with a man at about 20 years of age. This relationship lasted six years, and they apparently lived together for four years. While in this relationship she embraced Islam. (The Applicant did not at any time during her oral evidence make any mention of same-sex relationships but Dr Tran’s report refers to her as being bisexual and there is reference to a same-sex relationship in Exhibit A7.)
26. The Applicant said that in 1998 Dr Ho diagnosed her as schizophrenic and prescribed drugs. When asked how her schizophrenia affected her she said that “I can’t think – I don’t understand things and situations. I don’t understand why I do things”. When asked how it affected her actions, she said “I don’t care what I have done – I just go out and do them”.
27. The Applicant said that when she was 10 years old she was diagnosed as having an attention deficit hyperactivity disorder (“ADHD”). She said that she did not like the medicine (Ritalin) prescribed for her because it made the voices stronger.
28. The Applicant said that she was locked up in 2004 “because of the character test”. Her understanding was that she was released because they were giving her back her permanent residence.
29. The Applicant’s parents died within a month of each other in early 2004. She was told of their deaths by one of her sisters some considerable time after they died. (The publicity surrounding the Prior Toia Decision enabled a sister to her locate her.) It seems clear that she had had very little to do with them. She said “I was scared of my family because they wanted to give me a hiding. We didn’t get along. There was incest in the family”.
30. After the luncheon adjournment of the first hearing day, the Applicant said that she went to live with Bonnett Davidson. This was, so she said, “disturbing” to her because Bonnett Davidson was on heroin, pills and marijuana and drinking heavily. Through Bonnett Davidson she became addicted to heroin.
31. It was put to the Applicant that her release in 2005, because of the procedural defect in respect of the Prior Toia Decision, might have seemed like a substantial reprieve; she replied that “I did feel like that – I didn’t know Bonnett Davidson was taking drugs. I had nobody else to depend on”.
32. The Applicant said that she stayed with Bonnett Davidson for a period. She said also that the government did not offer her accommodation. She asked her sister if she could stay with her and was told that “I must fix up my life first”.
33. The Applicant ended up on the streets in Kings Cross. She was convicted of drug offences and she was also convicted of shoplifting. She said that she was already drunk on champagne and wine when she stole a bottle from a store in Ryde. When asked by Mr Seck why she stole the bottle, she said that she did not know.
34. The Applicant again said that she became addicted to heroin. She said also that she was not offered medical care and that there was a waiting list to participate in a methadone program.
35. The Applicant was referred to the fact that post her release from immigration detention in 2005, she was again caught driving without a licence. She said that a friend offered to sell her a car for $200 and the price was so low that she wanted to find out what was wrong with the car. It was put to her that she was contemplating the purchase of a car when she did not have, and could not possibly obtain, a licence. She said that she was thinking of buying the car on the basis that someone else with a licence would drive her in it. As to how the price would have been funded was not explained.
36. Asked about her siblings, the Applicant said that she thought that her sister Maraea is not married but does have a partner. She has uncles and aunts but does not know where they are. She has not had any contact for years with her sister in New Zealand or, for that matter, with her brother.
37. The Applicant is in a current relationship with Hamish McLelland. They met on 21 December 2006 and started living together immediately and with his parents in Castle Hill. That evidence was amended to indicate that she sometimes slept with him at his parents’ home but that his parents did not like it and so that in consequence they sometimes they slept in his car. Mr McLelland is also on the dole because he is unemployed although he did, for a time, work for a law firm. Mr McLelland was also addicted to drugs and including heavy drugs such as heroin.
38. The Applicant said that she was pregnant when taken into custody in 2007, but that she miscarried. She said that subsequently she has started taking methadone and has cured herself of her heroin addiction.
39. Mr Seck asked the Applicant as to her views on religion. She said that she is a believer and that after her Muslim lover died in December 2005, “I turned into a Christian”. (Exhibit A8 would appear to indicate that the Applicant does not in fact have any firm religious convictions.)
40. The Applicant said that she does not want to go back to New Zealand because there is nothing there for her.
41. In general terms, the Applicant's evidence was disjointed, sometimes incoherent and at times illogical. There were, in my view, aspects of it which were untruthful. By way of one example, her evidence as to her proposed purchase of a motor vehicle cannot be accepted. Nor can it be accepted that her intake of drugs was financed entirely by social security payments and from gifts from friends.
PART C - the evidence of mr hamish mclelland
42. Exhibit A2 reads as follows:
1.I [am] Patricia Toia’s fiancé. We first met in December 2006 at Kings Cross.
2.We got engaged about 6 months ago having started to live with each other straight after meeting her.
3.I do not work. I left school at the end of year 12 in 1999 after which I worked as a law clerk and did the first two units of the legal practitioner’s course but dropped out because I have had drinking and drug dependency since about 1994.
4.I did not work since 2004 due to the drinking and drug dependency. I have however, since then not drunk for about 2 years. I have stopped using drugs and commenced the Methadone programme with Patricia about 4-5 months ago. I am currently looking for work.
5.I am looking through Centrelink and am currently doing working for the dole programmes.
6.I intend to obtain employment and try and get on with life after getting married.
7.At the moment I live with my parents who have advised that they are willing to support us until we find our own place.
8.Patricia and I have tried [to] start a family however she miscarried while she was in Gaol at Silverwater.
9.I love Patricia and wish to spend the rest of my life with her.
10.There have been moments when she has done things which we have been out of character when on drugs. She now doesn’t use and we want to rehabilitate to become worthwhile citizens.
43. Mr McLelland said that after meeting the Applicant there was a courtship for about two weeks and that they then commenced living together. They sometimes stayed with acquaintances and in addition, so he said, the Applicant was provided with emergency accommodation by the Department of Housing (in Campbelltown). (The Applicant had said nothing of any such accommodation.) He said also that they stayed with his parents but only on occasions.
44. Mr McLelland was for a time a law clerk at Edmund Barton Chambers and where he was, so he said, a “gofer”. He was thereafter a clerk with a firm of solicitors. For a time he was engaged in legal studies through the Legal Practitioners Admission Board (even though he did not attain an HSC) but gave up those studies.
45. Mr McLelland, too, was a heroin addict, but he is currently on methadone and not at present taking illicit drugs.
46. Mr McLelland said that he wanted to marry the Applicant, and if need be would be reunited with her in New Zealand.
PART D - the evidence of dr tran
47. Dr Tran’s report dated 16 April 2007 (Exhibit A4) reads as follows:
…
INTRODUCTION
This report was prepared at your request in relation to Ms Toia's court appearance on 16 April 2007. I understand that Ms Toia has been charged with Driving while disqualified.
IDENTIFYING DATA
Ms Toia is a 28‑year‑old female, who reports that she was living with her de facto partner of 8 months and was in receipt of the Disability Support Pension at the time of her arrest. According to Ms Toia, she was 6-week pregnant at the time of the assessment.
CONFIDENTIALITY
Prior to interviewing Ms Toia, I explained to her that the purpose of the interview was to prepare a psychiatric report for court, and not for treatment. Ms Toia was made aware that any information obtained from the interview would not therefore be confidential and gave her informed consent to the interview.
SOURCES OF INFORMATION
This report was primarily based on my psychiatric assessment of Ms Toia, who I interviewed at the Mulawa Correctional Centre (MCC) on 6 March 2007. In preparing this report I also had the opportunity to review the following documentation:
1.Judicial request for forensic psychiatric report.
2.Ms Toia's extensive criminal record.
3.Police Facts Sheet dated 4 March 2007.
4.Ms Toia's Justice Health (JH) clinical records.
HISTORY FROM MS TOIA
Ms Toia said that she came to custody 10 days ago, and that she went through both alcohol and heroin withdrawals.
She said that she had been completely abstinent from alcohol for about 9 years before she relapsed into drinking in around December 2006. She admitted to having been drinking about one‑and‑a‑half bottle of wine every day prior to her incarceration.
She said that her mood has been "up and down". She complained of being "emotional" and she attributed this to her being pregnant. She related that this was her first pregnancy, which was not planned.
She denied having experienced any persistent depressive symptoms. She said that she has been eating and sleeping adequately. She denied any thought of self‑harm.
She said that she has always had difficulty controlling temper, and that this has got worse since she came to custody. She acknowledged that she has always had problems with concentration.
She admitted to being impulsive. She also admitted to being prone to violent behaviours.
She specifically denied any perceptual disturbance or any other psychotic symptoms, i.e. persecutory experiences, thought interference.
In relation to the circumstances surrounding the index offences, Ms Toia informed me that she has been declared a "habitual offender". She expressed frustration at the fact that she has been disqualified from driving until year 2060. According to Ms Toia, she would only drive when having an argument with her de facto partner. She said that she had to "drive off" in order not to "bash" him.
PAST PSYCHIATRIC HISTORY
Ms Toia reported that she has had several psychiatric admissions since year 2000. She informed me that she has been diagnosed as suffering from "speed psychosis" for which she has been treated with "Zyprexa" (an antipsychotic) in the past.
She said that she has not had any regular psychiatric follow‑up in the community following her discharge from hospitals.
ALCOHOL & OTHER DRUGS HISTORY
Ms Toia said that she began drinking alcohol at the age of 11. She admitted to a history of regular and heavy drinking apart from a period of complete abstinence between 1997 and 2006.
She said that she had been using intravenous amphetamine "all my life" since the age of 11. She denied having used ice (the more concentrated form of speed).
She denied having used cocaine or ecstasy.
She said that she only began to use heroin, by intravenous route, towards the end of 2006. She felt that she would not need to go on Methadone because she would never put her unborn baby at risk by using heroin.
According to Ms Toia, she attempted residential drug and alcohol rehabilitation in year 2000 but left the programme prematurely after 4 months. This was her only ever attempt at rehabilitation.
PAST MEDICAL HISTORY
Ms Toia informed me that she had tested positive for Hepatitis C for which she had not undertaken any treatment.
She reported that she had suffered head injury associated with loss of consciousness "many times" during her childhood as a result of being "bashed" by her parents. She said that she was once thrown out of a second‑storey window but survived the fall.
FAMILY & PERSONAL HISTORY
Ms Toia said that she was born in New Zealand. She came to Australia with her family when she was aged one year. She is the youngest of 4 siblings. Her father died 3 years ago at the age of 59 from cancer. He is said to be a biker, who has done "a lot of jail". She described him as a violent "alcoholic" and intravenous drug user.
Ms Toia revealed that there was "a lot of incest" in her family, with her sister having allegedly been sexually involved with her half‑brother.
She reported that she was sexually abused by her sister's boyfriend and her father's friends when she was 4, 6 and 10 years of age.
She said that she never liked school because she was "always in trouble". She admitted to a history of truancy and disciplinary problems. She reported that she went up to, but did not complete, year 8.
She said that she ran away from home and became a street kid at the age of 11. She came into contact with the juvenile justice system at 13 and had been "in and out" of juvenile detention, and subsequently adult correctional centres.
She reported a limited employment history, having only done casual labour work for brief periods of time in between incarcerations.
She identified herself as being "bisexual". She said that she had only been attracted to women until the age of 19 when she met her first boyfriend, who was 20 years her senior. Their 6‑year relationship was ended by his death from cancer 3 years ago.
She reported a positive family history, with her brother having allegedly been diagnosed as suffering from schizophrenia.
MENTAL STATUS EXAMINATION
Ms Toia presented as a fit‑looking female with a dark complexion. She was cooperative and maintained good eye contact. She appeared restless. Her speech was increased in rate and volume.
Ms Toia described her mood as being angry and frustrated. She displayed a quite labile affect, bursting into tears on several occasions during the interview. There was no reported or observed perceptual disturbance. She did not demonstrate any formal thought disorder. Her thought content did not reveal any delusional material.
She was oriented to time and place. She had some difficulty attending to the interview, being noticeably distractible. There were no features suggestive of significant cognitive dysfunction. She demonstrated poor insight and impaired judgment.
PROVISIONAL PSYCHIATRIC DIAGNOSIS (DSM‑IV)
Axis I:Polysubstance Abuse (Alcohol/Heroin/Amphetamine)
Attention‑Deficit Hyperactivity Syndrome
Axis II: (Personality) Antisocial Personality traits
Axis III: (General Medical Condition) Head Trauma. Hepatitis C positive.
Axis IV: (Stressor) Incarceration. Relational conflicts.
Axis V: (Global Assessment of Functioning during the past year) Deferred.
OPINION AND RECOMMENDATIONS
·Ms Toia does not appear to be suffering from a mental illness as defined by the Mental Health Act 1990.
·There are no reasonable grounds to believe that Ms Toia is developmentally disabled.
·There are reasonable grounds to believe that Ms Toia is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of the Mental Health Act 1990.
·There are no reasonable grounds to believe that Ms Toia is a mentally ill person within the meaning of the Mental Health Act 1990.
In relation to treatment recommendations:
·Should Ms Toia be released from custody, she should be referred to the local Drug Health Service for follow‑up, with view to participating in a drug and alcohol rehabilitation programme, preferably in a residential setting and on a medium to long‑term basis. She is at high risk of relapse into drinking and/or illicit drug use, which would increase her risk of reoffending.
She has demonstrated a propensity to violence and may benefit form pharmacotherapy, i.e. Sodium Valproate. Treatment with an SSRI agent may also help control her impulsive behaviours. There is no evidence of psychosis or major mood disorder. She does not require psychiatric admission and can be assessed and managed as an outpatient.
·Should Ms Toia remain in custody, her treatment needs can be met by the Justice Health Mental Health Service. In addition to psychiatric treatment, Ms Toia should also be referred to Inmate Development Services for drug and alcohol counseling and violence prevention programs.
I do not have any further comments to make at this stage. Please do not hesitate to contact me if there is any further way I can be of assistance.
…
48. It is to be noted that Dr Tran indicated that court assessments generally took an hour to an hour and a half so he would have spent no more than one and a half hours with the Applicant. I would nevertheless be inclined to accept his evidence as reliable. It may be noted that his report as regards “Family & Personal History” differs in significant respects from the evidence given by the Applicant.
49. Dr Tran spoke at some length of the Applicant's Attention Deficit Hyperactivity Disorder/Syndrome (“ADHD”). He said that the condition manifests itself in a compulsive need for satisfaction of her desires without her considering the consequences of her actions. He said, in particular, that it results in emotional instability and in severe mood swings. He said, furthermore, that she would have great difficulty in controlling anger and difficulty in waiting for anticipated or desired rewards.
50. Dr Tran said that he has seen the Applicant’s criminal record and that it demonstrates a disregard for risks. As to whether it could be cured would depend on the extent to which she is able to address the issues that cause her to offend.
51. Dr Tran said that people who suffer from ADHD are at great risk from drugs. He spoke of treatments which are available and moreover in the community and so that it is not necessary to undergo the treatment in an institution. He noted that she had participated in a program but left after four months in respect of a program scheduled to run for a year.
52. Dr Tran was categorical in his assertion that the Applicant is not schizophrenic. He said also that treatment for her condition is available for her, if necessary, in a custodial setting.
53. Dr Tran agreed in cross-examination that past conduct is an indicator of future conduct. He agreed, furthermore, that her drug history is such that she is at risk and that this is a significant factor.
54. It was put to Dr Tran that if the Applicant relapses into alcohol or illicit drug use, there is a high risk of her re-offending and he answered that this was implicit.
55. In re-examination, Dr Tran was asked to explain what he meant when he said that past conduct is a predictor of future conduct. He answered that he wanted to clarify the answer given by him in cross-examination in order to make it clear that the Applicant has an underlying condition which, if not treated, would be a significant factor. He said, moreover, that the Applicant is predisposed towards drugs because of her traumatic background.
PART E - the evidence of ms pickersgill
56. Ms Pickersgill was formerly a nurse, but for the past two years she has been a Chaplin to female prison inmates. She is not an ordained minister and could not be ordained in New South Wales without further study. She has diplomas in bible studies, mission and theology from Ridley College in Melbourne and Mary Andrews College in Sydney.
57. Ms Pickersgill gave evidence as to the Applicant attending bible study classes and as to books which she has furnished to the Applicant, all designed to teach the Applicant about “the Christian lifestyle”.
58. The Applicant's own evidence was that religion has not been a major factor in her life and, if anything, the reverse is the case, and, indeed, there was a time when she left a rehabilitation program because of its religious emphasis. I do not think that the evidence of Ms Pickersgill advanced matters to any significant extent.
PART F - recidivism
59. It was always clear that recidivism would be a major factor in this matter. Accordingly, and as I did in Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942, I deal with this aspect in a separate Part and being this Part F.
60. The Prior Toia Decision was handed down on the basis that the cancellation of the Applicant’s visa was thereby affirmed. The Prior Toia Decision reflects in concrete terms that the cancellation occurred only after a number of warnings given by the Respondent.
61. The legal error (as to the description of the visa) which gave rise to Applicant's release from immigration detention at Villawood, should have sounded a warning; it was referred to during the hearing as “the wake up call to end all wake up calls”. But it did not. Not only was the Applicant guilty of further offences, but her disciplinary record while in custody was bad. Mr Seck contended that the post immigration detention offences were not as serious as those which gave rise to the Prior Toia Decision and, in all events, were not within clause 2.6 of Direction No. 21 which identifies offences the government considers to be very serious. I am inclined to think that this contention may have some limited merit but subject to the proviso that offences involving illicit drugs of dependency or addiction are always serious. But that is not the point. The point is that the risk of recidivism referred to by Deputy President Walker in the Prior Toia Decision proved to be only too well founded. Within a very short time, the Applicant was again in trouble and such that she received a significant further jail sentence. Her disciplinary record in custody is also relevant, in particular, because it involved, on occasion, violence.
62. In these circumstances, I have no option but to find that the risk of recidivism is very high indeed and at all events, unacceptably high.
63. In Rajaratnam I referred to relevant case law, in clauses 51 to 53, as follows:
51.Ms Teo referred the Tribunal to a decision by Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No 81. Clauses 3 to 6 (and clauses 4 and 5 are particularly relevant) of that decision read as follows:
…
(3)Deportation may have for the criminal consequences more serious than the term of imprisonment which he served. Thus, in Re Sergi, supra, the criminal, an aged man, if deported, would have been separated from his children and grandchildren and may have been separated from his wife. In Re Ceskovic (1979) 2 ALD 453, and in Re Sevis, supra, consideration was given to the possibility of further punishment of the criminal should he return to his homeland.
Deportation may interfere with the criminal's rehabilitation. One of the objects of a sentence of imprisonment is the criminal's rehabilitation into the community. In the following cases it was thought that deportation would be likely to prejudice the criminal's rehabilitation: Re Vincent (1978) 1 ALD 460, Re Sajatovic (1979) 2 ALN No 78, and Re Martin & Sergmann (1980) 2 ALN No 114.
(4)The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. The cases I have mentioned under factor (2) are here relevant.
(5)Although the science of recidivism is an imprecise one, the task of assessing the prospects of future harm to Australia should the criminal remain occupies much of the Tribunal's attention in deportation reviews. The Tribunal gives attention to statistics on recidivism to the extent that they are available and expects that persons appearing for the parties will have considered what are the most relevant statistics currently available.
In the past history of most of the criminals considered for deportation, that is to say, criminals who have committed relatively serious crimes, personality defects, emotional or intellectual immaturity, lack of control or like matters can be identified. It is for this reason that in some types of crimes, for example, the crime of break, enter and steal, the rate of recidivism is relatively high. Thus the Tribunal finds little assistance in simplistic evidence from an applicant that he will not offend again. The task of the Tribunal is to identify the factors which led to the commission of the crime, to judge the effect of the period of incarceration upon the criminal and to assess the risk of recidivism accordingly. Having made its assessment of the risk of recidivism in a particular case, the Tribunal may find it necessary to take into account the fact that the techniques of prediction are clumsy and that the assessment of probabilities may be wrong.
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again. See Re Hood (1977), 1 ALN No 5, Re Tcherchian (1978), 1 ALN No 20, Re Botic (1978), 2 ALN No 3, Re Seljankovski (1979), 2 ALN No 43, Re Bio (1979), 2 ALN No 48, Re Smithers & Manson (1979), 2 ALN No 51, Re Nardella (1979), 2 ALN No 55. And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. See Re Becker (1977), 1 ALD 158, Re Gemayel (1978), 2 ALN No 5. (Emphasis added by the Tribunal)
(6)The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature. In many of the cases which come up for consideration, deterrence of others is not a significant factor. The crimes are of an individual character and any deterrence that is needed is satisfied by the provisions of the criminal law. But there are a number of cases in which crimes of a particular type have been associated with particular ethnic communities. Evidence before the Tribunal has shown that a number of young New Zealand citizens, particularly those living in and around the Bondi area of Sydney, have had a propensity to commit crimes in the nature of break, enter and steal, minor frauds and the like. Because a community group is involved, it has been thought to be useful that that group should appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by return to New Zealand. See Re Frith, supra, Re Winthrop & Smith (1980) 2 ALD 873, Re Tombuloglu (1981) 3 ALN No 11, and Re Steed (unreported, 17 July 1981, No N13/81).
Similarly, evidence before Tribunals has shown that some Italians from Calabria, particularly from the vicinity of the town of Plati, and some elements of the Turkish and Lebanese ethnic communities in Australia have become involved in drug offences. In some cases, it has been thought that the desirability of deterring others of the ethnic group from committing offences of a like nature was a relevant factor to which weight should be given.
Nevertheless, this is a factor which is taken into account only with care. As I said in Re Saverio Barbaro (1980) 3 ALD 1 at 15,
'The Minister contends that a deportation order is not imposed by way of punishment. One of the grounds in the notice of appeal in Gungor's case is that
"The making of a deportation order is not punishment". But little purpose is served by characterizing deportation as being not a punishment without recognizing that, if the major factor which moves the making of the deportation order is the desire to deter persons other than the convicted person from committing crimes of a like nature, then the making of an order may serve as an additional punishment because it is a detriment imposed as a consequence of the offence and is imposed with a view to deterring other persons from committing like offences. When a deportation order is made principally for the purpose of deterrence, its affinity with punishment consequent upon a conviction becomes a close one. That is a relevant matter to be taken into account.
…
52.Ms Teo also referred the Tribunal to the judgment of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198. See in particular the following extract from the judgment at 203 from Beaumont J as follows:
…
Risk of recidivism
The tribunal said, in the course of its reasons: ``As to the possibility of recidivism, there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed ... I believe accordingly that the possibility of recidivism is quite minimal.''
It will be recalled that the minister expressed his conclusion on this aspect as follows: “I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP program. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low.”
There is an apparent inconsistency in this reasoning. On the one hand, there is “the reality” of a “real risk, however minimal ...” [my emphasis]. On the other hand, the minister's conclusion on the point is said not to “depart greatly” from the tribunal and the possibility is said to be “low”.
I have difficulty in following the logic of this approach. If a risk is “real”, it is not apparent that it can at the same time be “minimal” or even “low”. The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the tribunal on the point and, at the same time, express the opinion that there was a “real” risk. Such an opinion would be quite contrary to the tribunal's conclusion on this matter. It must follow, in my view, that, to this extent, the minister's reasoning was “manifestly unreasonable”. This was an important aspect of the minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the minister for further consideration in accordance with the law.
…
53.It is of course clear that the judgment in Batey (supra) is binding on me. The decision in Stone (supra) while it may not be binding in the strict legal sense, was given by a judge and one of this Tribunal’s most respected presidents and deserves consideration accordingly.
PART G - direction – visa refusal and cancellation under section 501 – no. 21 (“direction no. 21”)
64. In this Part G, references to numbered clauses should be construed as references to numbered clauses in Direction No. 21.
65. The Applicant having conceded that she does not pass the character test, it is necessary to consider the discretion set out in Part 2 of Direction No. 21. The primary considerations are containing in clause 2.3 of Direction No. 21 reading as follows:
PRIMARY CONSIDERATIONS
2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
66. Clause 2.3 must be read in conjunction with Clause 2.5, reading as follows:
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
67. In general terms, I agree with the findings of Deputy President Walker in the Prior Toia Decision; I would add only that as regards recidivism, the risk appears to be considerably higher than even he contemplated, and indeed unacceptably high.
68. It seems clear that the Applicant is likely to be a threat to the Australian community. As to deterrence, it may be, as Mr Seck contended, difficult to determine what effect this decision will have on others, but it is necessary to send a strong message that conduct of this kind cannot and will not be tolerated.
69. As to clause 2.12 of Direction No. 21, concerning the expectations of the Australian community, it is possible that there are some members of the Australian community who would feel that the Applicant’s background is such that she should not be sent back to New Zealand, but that view would, in my opinion, be a minority view only. The description of the Applicant in The Sydney Morning Herald report previously referred to (at paragraph 12 above) in these reasons as a ”one-woman crime wave” is by no means inapt.
70. Hardship is relevant in relation to Mr McLelland, but he too is unemployed and without qualifications of any kind and likely to remain so. Moreover, he has stated that he would wish to marry the Applicant and would be prepared to be reunited with her in New Zealand. There is, on the face of it, no reason why he should not be permitted to join her in New Zealand, given that I am not aware of being convicted of any criminal offences.
71. Hardship is not relevant to any other member of the Applicant’s family because she has had little or no contact with any of them, and this is so for both those in Australia and also for those (and especially one of her sisters) in New Zealand.
72. It must be remembered that the Applicant is a Maori and so that for her to return to New Zealand should not cause her any significant hardship. Medical treatment is available in New Zealand just as it is in Australia. She said that she did not wish to return to New Zealand because there is nothing for her there, but it must also be noted that there does not seem to be anything for her in Australia. She appears to be estranged from all of the surviving members of her family. Mr McLelland said that she would receive a warm welcome from his parents but there was no evidence before the Tribunal to this effect, and indeed what evidence there was tended to suggest precisely the contrary.
73. To attempt to make contact with her sister Maraea, in Australia, has required her to contact the Red Cross although it might be thought that her sister’s name is so uncommon that to find her (probably in Queensland) would not be unduly difficult. Nor, if Mr McLelland is to be believed, will she be deprived of his society because as indicated previously, he said that he would, if necessary, join her in New Zealand. It must be said in respect of Mr McLelland that his evidence was noteworthy for the fact that although his progress to date has little to commend it, he is quite articulate and might conceivably be able to bring about an improvement in what is a most unfortunate situation.
74. As indicated previously in these reasons, the fact that the Applicant came to Australia when she was only one year old and has thus spent nearly all of her life in Australia is a relevant factor. But, she is a threat to the Australian community, and Australia deserves protection against her, given that the risk of recidivism is, as must be obvious, very substantial indeed.
75. In all the circumstances, this is a case where the discretion cannot be properly exercised in favour of the Applicant, and the decision under review must therefore be affirmed.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: ……[sgd]......................................................................
Associate
Dates of Hearing: 6 and 7 December 2007
Date of Decision: 20 December 2007Solicitor for the Applicant: Mr Coorey, C & M Lawyers (as agent for Mr S Hawach, migration agent)
Counsel for the Applicant: Mr M Seck
Solicitor for the Respondent: Mr A Orford, Clayton Utz
27