Re Toro Martinez and Minister for Immigration and Citizenship
[2008] AATA 511
•19 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 511
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1127
GENERAL ADMINISTRATIVE DIVISION )
Re Alejandro TORO MARTINEZ
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date19 June 2008
PlaceSydney
DecisionThe decision under review is affirmed.
……………………[sgd]……………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa-ex – character test conceded - whether discretion to cancel applicant’s visa should be exercised – protection and expectations of the Australian community considered – other considerations – primary considerations outweigh other considerations in this case – decision under review affirmed.
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RELEVANT ACT/S
Migration Act 1958 (Cth): ss 499, 501
Administrative Appeals Tribunal Act 1975 (Cth): s 35
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CITATIONS
Sales v Minister for Immigration and Multicultural Affairs (2006) FCA 1807
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Rountree v Minister for Immigration and Citizenship (2008) 100 ALD 320
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Re Stone and Minister for Immigration and Ethic Affairs (1981) 3 ALN No 81
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145
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OTHER AUTHORITIES
Direction No 21
Remorse and Criminal Sentencing in Australian Law Journal (2008) Vol 82 p 9
Norberg J, In defence of global liberalism” in Policy, (2006) winter , p 43
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REASONS FOR DECISION
19 June 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Alejandro Toro Martinez was born in Colombia and is a citizen of that country. He first arrived in Australia on 15 June 1985, departing on 8 November 1985. He returned again on 11 March 1988 with his Australian wife Shireen Stuart-Jones and their daughter, who was born in New York in 1984.
2. The applicant had previously migrated to the United States in 1969 with his sister, joining their parents and another sister in New York. He completed high school and began tertiary studies there, then trained as a gem polisher and obtained employment in that field. In 1980 he became a partner in a business dealing in gems among other items. He met his wife in 1979 and married her in New York in 1984. They were divorced in 2002.
3. The applicant was granted permanent residence in Australia on 4 May 1989 and in 1994 was deemed to hold a transitional (permanent) (class BF) visa.
4. On 26 November 1999, the Sydney District Court convicted the applicant on a plea of guilty of being knowingly concerned in the importation of a trafficable quantity of prohibited import (cocaine) and sentenced him to three years and six months' imprisonment. He appealed unsuccessfully against the conviction to the New South Wales Court of Criminal Appeal, but a prosecution cross-appeal against the inadequacy of the sentence was allowed on 7 June 2000 and his sentence was increased to six years' imprisonment with a non-parole period of three years.
5. The applicant was again convicted in Sydney District Court on 26 July 2002 of being knowingly concerned in the importation of a commercial quantity of a prohibited import (cocaine) and sentenced to 12 years and six months' imprisonment with a non-parole period of seven years. He did not appeal against that conviction. He had pleaded not guilty.
6. A delegate of the minister cancelled the applicant’s visa on 29 November 2001 pursuant to s 501(2) of the Migration Act1958 (Cth) (the Act). On 13 March 2007, however, he was informed that the 2001 visa cancellation was not effective by reason of the decision in Sales v Minister for Immigration and Multicultural Affairs (2006) FCA 1807 and that he was considered to be the holder of a class BF transitional (permanent) visa.
7. That visa was itself cancelled by a delegate of the minister on 10 March 2008 pursuant to s 501(2) of the Act and on 20 March 2008, the applicant applied to this tribunal for review of that decision.
8. In addition to the convictions referred to above, the applicant was convicted at St James Local Court, New South Wales, on 13 February 1992 of failing to produce a statement of assets and liabilities and failing to attend a conference and give evidence. He was fined a total of $400 for those offences.
9. The applicant is not currently married but is engaged to an Australian citizen living at Narrabeen, New South Wales. Pursuant to an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), her name is not to be published. I will refer to her as Jill (not her real name).
10. The applicant’s daughter lives in Melbourne. Although the confidentiality order does not extend to her, I think it appropriate not to mention her name either. I will refer to her as Alice (not her real name).
11. At the hearing, the applicant was represented by Mr John Weller, solicitor of John D Weller & Associates, while Ms Alice Linacre, solicitor of Clayton Utz represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant and his witness Jill gave oral evidence in person.
Issue
12. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
13. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
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For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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14. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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15. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
17. At the hearing the applicant adopted his statement of 7 May 2008 (part Exhibit A2). In his oral evidence in chief he said that he is now aged 55 and lived in Colombia until the age of 16. Between 1965 and 1969 his family migrated to the United States because of the threat of violence. In 1988 his mother was subjected to an extortion demand. When she rejected it, one of his uncles in Colombia was murdered.
18. In his statement of 7 May 2008, he said that he had participated in all the programs available to him within the prison system, including alcohol and other drugs courses. He had taken refuge in Buddhism in 2005 because it is part of the Buddhist philosophy to assume full responsibility for one’s actions. He firmly intends to change his life completely with a firm philosophical foundation.
19. He had earned certificates of attainment in information technology for the specific purpose of enabling him to help his fiancée, Jill, in her business whether in Australia or in South America. He would find it difficult to adapt to a culture that he left when he was 16 and his family were now mostly in the United States because of the dangers in Colombia.
20. He had pleaded guilty to his first offence and had not changed that plea. He had applied to the Supreme Court for an inquiry under the former s 474 of the Crimes Act, but that was in relation to the conduct of the NCAA officers who had conducted operation Colombia. That review application was rejected on 1 February 2008.
21. He pleaded not guilty on the second trial because he was not guilty. He had left that decision in his daughter's hands, as she loves her mother also. His daughter knows the truth about the case but he could not tell her to go against her feelings. For that reason he had not asked her to testify at her trial.
22. He had never broken the law while in Colombia or during his 20 years in the United States. He had worked as an emerald polisher, having studied gemmology, and met his wife Shireen in 1979. He moved to Australia with his wife and daughter in 1988.
23. His convictions in St James Local Court occurred because his agent had said it was unnecessary for him to appear. He had therefore failed to attend.
24. By 1996 his marriage was in a shambles and had become an “open relationship”. He was not leading an orderly life. There were too many people around and too much drinking. The offences were committed in the second half of 1996 and he deeply regretted them. He had gained a different view of drugs while in custody, having seen how they resulted in people being hurt and killed.
25. He had asked his wife for a divorce in 1996 but she did not agree until 2002. He left her in 1997 and then met Jill. His relationship with her had sustained him until now and had grown stronger while he was in jail. He had worked hard to make her proud of him.
26. In 1996 when Alice was aged 13 or 14, she had attempted suicide by slashing her wrists. She stopped speaking to him for about a year but the relationship has resumed and grown.
27. If released into the community he would move to the Gold Coast where Jill has an apartment which she purchased when his permanent residency was restored to him in 2007. He would assist her graphic design business on the financial side.
28. His motivation while in prison was to be a better person and follow Jill’s example. He wanted to help her in her successful business and had studied computers so he could do so, whether in Australia or Colombia. He had wanted to undertake still more courses but had not been able to do so because his visa had been cancelled. The parole officer had told him not to be concerned about qualifying for parole because he would be deported in any event.
29. He regrets his crimes but is now 55 and has a five-year parole period remaining. He would lose everything if he re-offended, there would be no point in it.
30. In jail he had read a great deal and had found that Buddhism was more in tune with his personality. It required him to accept responsibility for his actions and had helped him a great deal. He had become jail librarian and had helped others, such as by writing letters on their behalf to the immigration department. He had undertaken a drugs and alcohol course but learned the effects of drugs from what he had witnessed in jail. He had not been aware of such matters in 1996. He could not relapse into criminal activity again because Jill would not accept it. He would work to maintain contact with his daughter and would help out at the Buddhist centre. He does not have time to be involved in crime anymore.
31. He currently has a high cholesterol reading and is taking Lipitor for it. He also has an elevated, but not dangerous, reading in relation to the prostate and expects to undergo a biopsy within two weeks.
32. He contacts his sisters in the United States regularly. His relatives there had contacted his surviving uncle in Colombia and were concerned about his safety if he were to return there. Jill wanted to accompany him to Colombia if his visa were cancelled. He was not very happy about that because he was concerned that she might be attacked. He would want her to come to Colombia for a short period and decide if she wished to remain.
33. The Buddhist chaplain had told him that he could always attend a Buddhist centre in South America. If released he would hope to see the Dalai Lama when he visits Australia on 11 June 2008.
34. In cross-examination he acknowledged that his first drug conviction was for acting as an interpreter and assistant to the principal offenders (for convenience I will refer to that offence as the “assisting offence”).
35. The second offence related to the importation of a trafficable amount of cocaine through Cairns (I will refer to this as the “Cairns offence”). Those involved were not the same group as those who had organised the assisting offence. His wife had said he had organised the Cairns transaction, but it had in fact been his wife and her paramour who had done so. His first trial on that offence resulted in a hung jury, but he was convicted on the second. He did not appeal and would maintain that position unless his daughter came forward.
36. He accepted responsibility for the assisting offence but had played no role in the Cairns offence. Unless his daughter decided to say what she had seen, he would not contest the conviction. He acknowledged that Hock J had held that he was the main offender, but that was because he had no witnesses to testify in his defence. Errors had been made and sacrifices must be made for children. He had had no idea what was occurring at the time but accepted the decision because his daughter had attempted suicide.
37. He had participated in the assisting offence because his confederate Romero Cepeda had agreed to bring drugs into Australia as a result of threats made against him in Colombia. Asked if he would commit a crime to save a life, he replied in the affirmative. Then asked if he would commit the same offence again, he replied that he is now 55 and would have to say no. He has Jill and his daughter to consider. In those days he was not thinking properly. He had taken drugs but had been in no financial difficulty.
38. In Colombia he has one uncle who lives in a small town (Patio Bonito). He does not know if there are any problems in that area. He would have no difficulty with the language, but there would be a stigma attached to his criminal past. He would not be able to join his family in the United States because of it. He supposed that the qualifications he had obtained would help him to obtain work in Colombia.
39. He had gained new qualities through the practice of Buddhism. Previously he had been a Catholic and had attended church but was not a good Catholic.
40. Asked if he should accept responsibility in relation to the Cairns offence, he replied that he could not lie, and could not accept responsibility. If released he would appeal if his daughter agreed. She had not agreed to do so because she loves her mother. When it was pointed out to him that his daughter’s statement of 15 April 2008 (part Exhibit A2) said that he was taking responsibility for his offences but had expressed no doubt about the correctness of his convictions, he replied that he is different now. She knows the truth and had told him so. One would have to ask her about it, as he could not repeat what she had told him.
Evidence of the applicant’s fiancée
41. In her oral evidence Jill adopted her statement of 9 May 2008 (part Exhibit A2) in which she said that she had known the applicant for the past 11 years. Although they had been separated most of that time, they had managed to maintain a healthy, loving relationship and planned to marry immediately on his release. She has complete trust in him and believes he truly regrets ever having broken the law. In the beginning, to even visit a prison was not easy for her and if it had not been because she believed that the applicant had been a victim of circumstances she probably would have left him. She visited him for 10 years practically every weekend, both Saturday and Sunday. They had many discussions about how he had wasted his life and could have done much more with it. He is very well educated and should never have been involved with such people.
42. She believes the applicant has great potential and is pleased he would be working alongside her when he comes home. She had spent that last 10 years concentrating on developing her business and preparing for his release. When his visa was reinstated, she informed her family and friends that they were staying and started to make serious plans. She made tentative wedding plans and purchased an apartment in Queensland to be close to her family. She thought living in Queensland would be a positive step in preventing him from encountering anyone from his past. She also purchased a new car. It had cost her a considerable amount to set their new life in place.
43. She is from a hardworking Australian family who have well and truly paid their way. She has worked since she was 17, has never been unemployed and has never been a burden on the government. She had no criminal convictions, nor did anyone in her family. Her dream is to marry the applicant and be happy, live a simple life, work hard and enjoy being together.
44. If she had to relocate to Colombia it would have a negative impact on her life and that of her family. She did not believe she would be totally safe there and thought she might be watched and followed in the street. But she would have to go, as the applicant is too important to her. She has been waiting for 10 years because she believes he is sincere and has changed. He has given his all to prove to everyone that he genuinely wants to improve himself. While in jail he has undertaken every course available and has never been charged with misconduct. He attends Buddhist meetings and is totally dedicated to their teachings, which are focussed on the caring and nurturing of other human beings.
45. She could understand the respondent’s arguments and respected their decision based on his prior conduct but asked that the applicant be considered in relation to what he has now become.
46. In oral evidence Jill said that she had agreed to stay with the applicant only if he showed that he had changed and proved it to her. He had to accept responsibility for his actions. But he has said that he is sorry. She has reached a time in her career where she wants to spend more time with him. She also needs administrative support in the business. He has succeeded in all his skill courses and held a responsible position at John Moroney II.
47. Between 2001 and 2007 she had believed that she would be living with him in Colombia. His family had said that the situation there was volatile and that she would stand out as a foreigner. They had thought it would be inadvisable for her to live there.
48. She would not have a wedding in custody as she wished to invite family and friends. Her wedding plans are therefore on hold. She did, however, buy an apartment that would provide a safe environment located near her family, where there would be no pressure. Her family would support them in becoming established.
49. She is aware of his actions and his lifestyle in 1996 and of their effects on Alice.
50. All the work in her business is carried out online, which makes it practicable to take her client base with her from New South Wales to Queensland.
51. She does not believe there is any chance that the applicant will re-offend. He has proved that he has changed. She would be prepared to put up all her assets for a bond to guarantee his good conduct.
52. In cross-examination Jill admitted that as the applicant's new behaviour and attitudes had not been tested in the community, one could not be sure how he would react in that setting, but added that she has seen how he reacts with others who try to discuss possible bad actions in his presence.
53. She had known that he was married and separated soon after they met in 1997. She became aware of his offences in 1998, shortly before his arrest.
54. If his visa were cancelled she would accompany him to Colombia, although he is very concerned, as is his family, about the level of danger there. She would have to keep a low profile because she would be considered an asset.
55. It would be very difficult for her to run her business from Colombia as she needs to maintain personal contact and it would be hard to keep her best clients otherwise. She has four consultants with whom she works and has to instruct them all. She is under constant pressure from clients and short deadlines, and works 10 hours a day.
56. The language barrier would prevent her from obtaining employment in Colombia. She had not taken Spanish lessons after the visa was cancelled in 2001 because she had been focussed on her career and was living in hope that the matter would work out.
57. It might be possible to divide her time between Australia and Colombia to a certain degree, but the business is very hands-on and clients want her to oversee their matters directly. It would be very difficult and she does not want to lose what she has built up.
58. The applicant comes from a very good family but mixed with the wrong people and made mistakes. He admits his involvement in the offences to a degree. As regards the Cairns offence, his ex-wife put him where he is because of her (Jill), and he was not responsible. There had been a hung jury on the first trial but she accepted that he had been proved guilty. She would not favour an appeal against that conviction because she wanted to move forward.
Other evidence for the applicant
59. The applicant's daughter “Alice” did not give oral evidence but wrote a letter dated 15 April 2008 (part Exhibit A2) in which she stated that over the 10 years her father had been in jail she had remained in regular and constant contact with him by telephone and mail. She has observed him grow, progress and transform mentally, physically and spiritually.
60. When he was first confined, he was “an irresponsible man with fictional ideas about life, money, and love. He was neither grounded nor committed, and wasn’t exactly a family man either”. But he had spent a great deal of his available time reading and that had been the start of his journey to become the man he is now. He had come to accept his past mistakes and had taken responsibility for his actions and regretted the mistakes he had made. He had learned from them so as to make himself a better person. While before his arrest in 1998 he would have been considered a materialistic man whose self-worth was based very much on what he owned, he is now neither materialistic nor controlled by money. Instead the goal of education and self-growth was more appealing. She truly did not believe he would re-offend. He had embraced Buddhist perspectives on life and sustained constant personal growth. He is a changed man.
61. Supportive letters were also received from the Venerable Thubten Chokyi, Buddhist chaplain at Cessnock, Graeme Lyall AM, president of the Amitabha Buddhist Association of New South Wales, the reverend Di Langham, a chaplain at Cessnock, and Andrew Ryman, a former inmate who believes that the applicant saved his life when he was injured and also enriched his life on a deeper spiritual level.
62. Other supportive letters came from Mr Marcus D’Arcy, the applicant’s aunt Gilma Colon Martinez in New York, his sister Carmen Toro-Rizvi and his sister Maria Christina Bowery in California.
Applicant’s submissions
63. On behalf of the applicant, Mr Weller acknowledged that the sole issue for determination was the exercise of the tribunal’s discretion. In that regard the seriousness of the offences was conceded. The applicant accepted his daughter’s brutal description of him as he was in 1996. He had committed the assisting offence because of death threats but admitted that he was wrong to do so.
64. In relation to the Cairns offence, he accepts the decision and on that basis takes responsibility for it. He had, however, protested his innocence and denied that his wife’s evidence was the truth.
65. In response to a question he acknowledged, however, that there was no evidence, oral or in the documents before the tribunal, giving an account of what the applicant had actually been doing at the time of the Cairns offence.
66. In relation to the risk of recidivism, the jail case-notes concerning his performance were 100 percent favourable and there were other uncontested supportive references. He had not had a single custodial offence in 10 years and had worked and studied. He was a model prisoner, and it was notable that his motivation between 2001 and 2007 could not have been parole or retention of his visa because he was ineligible for parole and his visa was already cancelled. His conduct therefore deserved great weight. He wanted to start doing the right thing and understood the evils of drugs.
67. He was assisted by an astounding support system. Jill had visited him over 800 times in six different jails, including Goulburn and Cessnock. She is hardworking and comes from a good background and has an unblemished record of her own. The rules she laid down led him to begin living in accordance with those standards. He has not had the opportunity of showing what he could do in the community.
68. There were no mitigating circumstances in relation to his criminal record, nor did he have a psychological history, but in 1996 he had no convictions in Australia, Colombia or the United States apart from the $400 fine for non-attendance. He had been in a seriously evil environment, so that if he left that behind, as he did before his incarceration, he would not relapse.
69. In addition, there were favourable reports about his religious development in Buddhism. The chaplain had described how he was helping others, and a former inmate, Mr Ryman, said that the applicant had saved his life by alerting the authorities when he had been injured in an attack. Jill had observed how he had pulled others into line if they discussed wrongdoing in his presence.
70. It was the totality of his criminal conduct that was relevant, and that had taken place over a short period. Unlike the applicant in Rountree v Minister for Immigration and Citizenship (2008) 100 ALD 320, he did not have a long record that might tend to show a propensity to relapse. He is now in a different environment and wants to work together with Jill and renew his ties with his daughter.
71. As regards general deterrence, he had served 10 years in jail and that constituted a major deterrent.
72. Mr Weller then turned to the question of community expectations. He noted that the respondent concedes that the applicant has been in Australia for 20 years, his fiancée and daughter are here and that he has undergone rehabilitation in the prison system. The visa cancellation in 2001 was significant. He had been doing well in jail and his bond with his daughter had been strengthening. But when his visa was cancelled he obtained information about Colombia, where he has an 86 year-old uncle, another uncle having been killed by the FARC guerrillas in 1988.
73. Then in March 2007 he had been told that his visa was reinstated, but it had been taken back a year later. That was harsh treatment, as Jill had purchased an apartment and made plans to transfer her business to Queensland. While an initial reaction to expel a person with such a record might seem reasonable, the community might consider that after 10 years of rehabilitation and a year of false hope, to cancel his visa again was not fair treatment.
74. His family had fled from Colombia and the International Obligations and Humanitarian Concerns Assessment dated 9 August 2007 (Humanitarian Concerns Assessment) had noted that the government was unable to protect its citizens from violence. Other states were not returning nationals to Colombia involuntarily and agencies such as UNHCR had advised that persons should not be returned there involuntarily at the present time. While the assessment had concluded that there was no real risk that he would be subjected to torture or to cruel, inhumane or degrading treatment or punishment, it had admitted that there was still a risk from generalised or random violence.
75. The family had interviewed his uncle Rodrigo Martinez Doria at Patio Bonito, who had said it would be unfair and untimely to return him to Colombia, where his life would be at great risk, as would those of his family members (part Exhibit A2).
76. The applicant acknowledged recent press reports that the death of the FARC founder and leader Manuel Marulanda, following the deaths of two of its other top FARC commanders in recent months, appeared to offer an opportunity for the government to bring the violence in Colombia to an end. But he pointed out that press clippings dated as recently as March 2008 were still saying that the situation was unstable, and there had been a risk of war following an anti-guerrilla raid into Ecuador that killed Raúl Reyes, another senior FARC leader. There were thus mixed messages and the situation remained volatile.
77. In those circumstances the community would give the applicant a second chance in view of his good prison record and his excellent support system.
78. The other considerations to be taken into account included the disruption of his family and Jill’s business. He would be separated from his daughter and Jill could not practicably work from Colombia; it would have been difficult enough for her to transfer the business to Queensland. She would find it difficult to set up a business in Colombia and has not dealt with the language problem because she has been too busy.
79. As the applicant cannot join his family in the United States because of his record, he would have to start again in Colombia. The health system there was inadequate and he currently has an elevated cholesterol count and prostate reading. He would need medical help and could expect no support in his uncle's small town.
80. The Humanitarian Concerns Assessment should be taken into account in relation to Australia’s international obligations to the applicant.
81. The applicant’s criminality had extended over a short period and he had no prior criminal record. He had been rehabilitated and had a bright future with marriage and the prospects of a job in his fiancée’s business. All factors were in place warranting giving him another chance. There is no sustained history of criminality or any propensity to return to crime.
Application of the Law and Findings of Fact
82. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within ss 501(6)(a) and 501(7) and that there were no mitigating circumstances.
83. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
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84. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
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85. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (a), the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
86. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
87. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, in paragraph 2.6(a) gives special and unique prominence and emphasis to offences involving the production, importation, distribution, trafficking, commercial dealing or selling of illicit drugs:
§persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
§the government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of your Australians at risk, be viewed as completely unacceptable to the community; and
§offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;
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88. The applicant admitted the seriousness of his offences, but as they are an important factor in the present case it is necessary to say a little more about them.
89. In her sentencing remarks on the assisting offence, Ainslie-Wallace J noted that the applicant had initially stated that he had agreed to become involved only as a translator and had not thought that translating constituted criminal activity (see also Spiegelman CJ AT [54]. He later conceded, however, that from 19 December 1996 he overstepped his role as translator and became involved in the scheme to extract the cocaine from the plastic folders or envelopes that had been impregnated with it. He explained it by saying that he became caught up in the excitement. Her Honour concluded that he became involved for the reason he asserted, to assist Romero, but was drawn further into the criminality in so doing. He was active in the extraction process and at one stage indicated that he had been working all night on that process.
90. Although he had pleaded guilty, the applicant appealed against the conviction to the Court of Criminal Appeal. He did not claim to have been innocent of the offence but argued that the controlled operation that led to his arrest and prosecution was tainted with illegality. Dismissing the appeal, Spiegelman CJ noted that a feature of the illegality alleged was that it did not “impinge in any respect on the involvement by the Appellant in the criminal enterprise. No inducement, trick or entrapment was employed by any representative of the authorities which involved the Appellant in any way” (para 14). His Honour concluded, “The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a plea of guilty, when there is not even a pretence of innocence is, to my mind, virtually inconceivable” (para 32).
91. He added that “Nothing is more calculated to bring the criminal justice system into disrepute than to treat it as some form of forensic game” (para 29).
92. In relation to the cross-appeal against inadequacy of the sentence, his Honour noted that the pattern of sentencing for such offences “reflects the significance that is to be attached to the requirements of general deterrence with respect to the importation of drugs … The requirements of personal and general deterrence and the extreme adverse social effects and personal degradation occasioned by drug use, require the conclusion which her Honour also reached, that no sentence other imprisonment is appropriate” (paras 62-63). The court increased the applicant’s sentence to six years with a non-parole period of three years.
93. In sentencing the applicant for the Cairns offence, Hock J noted that the prosecution case was that the applicant was the principal behind the importation of 4.492 kilograms of cocaine. He had arranged for the purchase and importation from South America, but distanced himself from the handling of the drug and the dangers attendant thereon. His Honour concluded:
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On the evidence in the trial, I am satisfied beyond reasonable doubt that the offender was indeed the principal in respect of this offence. It is to be noted that he was in South America from October 1995 until June 1996. I am satisfied to the requisite standard that he not only arranged for the purchase and importation of the cocaine from South America, but that he also had overall control of the importation from start to finish … His wife was undoubtedly a willing participant in the venture, but she acted at his direction …
The importation was well planned and executed. Had the offender and his wife not been under surveillance, no doubt it would have been successful. The offender had absolutely no regard to the harm dissemination of cocaine causes to the community, and his motivation was purely financial gain (at pp2-3).
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94. The basis on which the applicant was sentenced was that he was knowingly concerned in the importation of 655 grams of pure cocaine, that being a trafficable quantity.
95. His Honour observed, significantly:
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The evidence which the offender gave before her Honour, Judge Ainslie-Wallace, that the experience of being in prison for two years and eight months awaiting trial on drug importation charges which were ultimately no-billed was sufficient to deter him from involvement in such offences, was obviously patently false.
The offender is not, of course, to be further punished for that offence but, on the material before me, his prospects of rehabilitation appear bleak. Further, there is absolutely no contrition. In fact the offender mounted a vigorous attack on his wife, the main crown witness, to suggest that she was behind the importation and it had nothing to do with him. Clearly, the jury did not accept that was the case (at p4).
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96. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51].
97. The substantial amount of supportive evidence in this case has been outlined above. If accepted it would lead to the conclusion that the applicant has made substantial progress along the road to rehabilitation. First, there is his unblemished record while in prison and his successful completion of a substantial number of skills and rehabilitation courses. His work record while in custody was very good. Ms Linacre countered that for a non-violent prisoner it is not too difficult to build up a good prison record, but while that may be so, I think he should be given credit for it.
98. Then there are the numerous references from Buddhist leaders, family members, Mr Ryman and others. Jill’s evidence concerning his personal transformation and acceptance of proper standards of conduct corroborates his own claims to that effect and is corroborated by the letter from his daughter Alice who for a time had been estranged from him. There appears to be no reason why that evidence should not be accepted.
99. At the hearing the applicant accepted responsibility for the assisting offence, although he appeared at first to depict his role in it as that of a mere translator, as he had done before Ainslie-Wallace J. He denied any involvement in the more serious Cairns offence, however, claiming that he had been convicted on false evidence given by his then wife. He claimed that his daughter had witnessed certain events that supported his claim, but said he had not asked her to give evidence at his trial because she had slashed her wrists six years before, when she was 13 or 14. If she were to agree to come forward and reveal what she knew, he would appeal against that conviction (presumably he would need to seek special leave).
100. As Young CJ in Eq has observed extra-curially, the expectation that an offender will demonstrate remorse for past wrongdoing entails difficulties, notably in the case of wrongful convictions:
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Unfortunately, this does happen from time to time. The system means that a person in this category who will not lie and say that he or she is sorry for the crime they did not in fact commit, will stay in prison longer than the person who actually did do the deed, but has decided to embrace religion and has demonstrated this by attending prison church or mosque services (‘Remorse and Criminal Sentencing’, 2008 82 ALJ, 9,10).
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101. My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender’s overall state of mind, taking into account the nature and circumstances of the offence, overall record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim.
102. In the present case those difficulties do not loom large. First, it is settled law that this tribunal may not question the correctness of any conviction or the appropriateness of a sentence or the essential facts on which they are based; (Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [40]; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441). The tribunal may, however, accept evidence relating to the circumstances surrounding the offence in connection with its evaluation of discretionary factors (Daniele at 358).
103. Secondly, the applicant claims that his daughter possesses certain information which, if given in evidence, would show that he was innocent of the Cairns offence. He gives no indication as to what it might be, beyond asserting that he had nothing to do with the offence. It was conceded that nowhere in his testimony or in the documentary evidence had he ever offered any account of his movements or actions during the relevant period. Hock J thought it noteworthy that the applicant had been in South America from October 1995 until June 1996 and found that the applicant had met up with co-offender Michael Boyd after the cocaine had been brought into Australia via Cairns. Those and other facts call for some explanation before any weight can be given to his claim.
104. Further, he told Ainslie-Wallace J in the assisting offence that in 1996 he had travelled to Colombia to attend to some family affairs (at p4). From the movement records it appears that could only be a reference to his eight-month absence from Australia between October 1995 and June 1996. But he has repeatedly claimed that all his original family except one uncle (and an ailing aunt) now live in the United States, and it is not obvious why he, rather than one of his US relatives, could not have attended to those matters and why it took him so long to deal with them, assuming that he spent the whole eight months in Colombia. Something more than a flat denial of involvement and mysterious references to his daughter’s knowledge might be expected.
105. Thirdly, it might also be noted that when he appealed against conviction in the assisting offence, he did not claim to be innocent and there was no evidence that even if the controlled operation had been marred by illegality, that he himself had been prejudiced by any entrapment or other unfair conduct. One cannot, therefore, assume that if his daughter had any information about the Cairns offence, that it would in any way diminish the applicant’s culpability. At all events, he was found guilty by a jury and Hock J himself was satisfied beyond reasonable doubt that the applicant was indeed the principal offender.
106. Fourthly, it may be significant that nowhere in his daughter's lengthy letter of support dated 15 April 2008 is there the slightest hint that the applicant might not have been fully culpable for the Cairns offence. Its tenor rather suggests the opposite. She makes numerous references to his “mistakes” and to how he has learned from them and accepted responsibility for his actions. Nor is there any reference to the alleged wrist-slashing in 1996 or to what might have motivated it.
107. The pre-release report of 18 March 2008 was prepared on the papers and the applicant was not interviewed. The psychologist at Cessnock Correctional Centre and her supervisor noted that he had been convicted of no internal charges while in custody, but at the same time thought that it indicated a capacity to control his behaviour in the structured jail environment:
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The offence itself would reflect Mr Toro-Martinez’s capacity to demonstrate restraint in relation to conducting criminal activities. The current offence was carefully enacted by Mr Toro-Martinez.
If he were to engage in any fractious activities whilst on C3 leave it is likely they would be purposeful and calculated as opposed to impulsive. If Mr Toro-Martinez were to be granted C3 leave he would need to be closely scrutinised given his capacity to organise detailed and well planned criminal enterprises.
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108. On the preponderance of probabilities I find that there is credible evidence of reform and rehabilitation. If released into the community he would have excellent support and assistance from Jill, perhaps with additional aid from her family. The effect of that evidence is weakened, however, by his refusal, for no acceptable reason, to accept responsibility for his major offence. The period covered by his criminal activity was short, but it occurred when he was a man of mature age and old enough to know better. The offences were also of a planned and calculated nature and motivated by financial gain.
109. Consequently, while the evidence of rehabilitation suggests that while the risk of recidivism may be low, it is nevertheless real and could have serious consequences for the community (Re Stone and Minister for Immigration and Ethic Affairs (1981) 3 ALN No 81).
110. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
111. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
112. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
113. Deterrence cannot be a decisive or even a substantial factor, but as Spiegelman CJ emphasised when dismissing the applicant’s appeal, it must be taken into account. Mr Weller submitted that 10 years' imprisonment was sufficient deterrence for anyone, but Direction No 21 plainly contemplates that it should be given weight in considering the application of discretionary factors in cases such as the present one.
Expectations of the Australian Community
114. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
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Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
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115. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47). Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
116. In Al-Kateb, Hayne J observed (at p632) that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community.
117. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
118. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
119. Mr Weller very properly conceded that an initial community reaction to the applicant’s record that he should be removed from Australia would be entirely reasonable. But he maintained that given the evidence of rehabilitation, the applicant’s excellent support system, and generally bright future, the community would be amenable to offering him a second chance.
120. Those circumstances would, I agree, give many people pause. Mr Weller also submitted that the false hope raised in him and in Jill by the restoration of his visa in 2007, which was dashed a year later, would lead many Australians to think he had not been fairly treated. That part of the argument cannot be sustained. Although the respondent’s letter informing the applicant on 13 March 2007 that he was receiving a new visa is not before the tribunal, it was made clear to the applicant less than a month later in the respondent’s notice of intention to consider cancellation dated 10 April 2007 that his case was still under review. It would have been obvious that visa restoration might prove to be temporary. Before his visa was first cancelled, the applicant had not been warned about that possibility.
121. Furthermore, I think the seriousness of the offences and their planned and calculated nature would ultimately lead most community members to the conclusion that the appropriate course was to cancel the applicant’s visa again.
The Best Interests of the Child
122. There is no child whose interests need to be considered under this heading.
Other considerations
123. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
124. The applicant has been in Australia for approximately 20 years, except for several substantial absences running into months, including the eight months he spent in South America in 1995 to 1996. His only family in Australia is his daughter Alice, now aged 24, with most of his other relatives residing in the United States.
125. He is engaged to marry Jill and the relationship is clearly genuine. Jill has invested a great deal of time, money and emotional energy into it and she would suffer hardship if he were removed to Colombia. In that event she would follow him there, but would face difficulties through her lack of Spanish-language skills and possibly because of her visibly foreign appearance. She would find it difficult to transfer her business there because of the need for client contact and would find it hard to establish a new business there without the appropriate language skills, although presumably the applicant could help in that regard.
126. Jill thought it might be possible to divide her time between Australia and Colombia to a certain degree, but it would be difficult as clients want her to oversee her work personally.
127. Alice would also suffer some emotional hardship from his removal, but as she lives in Melbourne and he has been incarcerated for 10 years, their contact has been by telephone and mail, as she states in her letter of 15 April 2008. That contact could continue if he is in Colombia.
128. There is evidence of rehabilitation although, as was noted above, it is not unequivocal.
129. The applicant would face no language difficulties in Colombia and spent extended periods there before his arrest. He is intelligent, personable and possessed of skills that he supposed would help him to find work there.
130. He is currently taking Lipitor for high cholesterol and undergoing tests in relation to an elevated prostate reading. The evidence does not show that anti-cholesterol drugs, or treatment for prostate problems, are unobtainable in Colombia. The applicant argued that there would be no medical support available in his uncle’s small town (implying that he would, at least initially, go to live there). Patio Bonito is apparently near the city of Monteria (part Exhibit A2) (2007 population: 299,715), which according to the Times Atlas of the World lies in the coastal region of Córdoba some 200 kilometres south-east of the port city of Cartagena (2007 population: 871,342). According to the Pan American Health Organization, Colombia has 872 public hospitals and 580,010 health care sites. There are 33,682 general care physicians (7.3 per 10,000 population) and 27,034 registered nurses (5.9 per 10,000) in addition to specialists and auxiliaries. The country has a state-subsidised health insurance system (Health in the Americas 2007, Vol 2, pp218-238). Without more detailed evidence and submissions, one could not draw conclusions about the practical standard of health care that would be available to the applicant in Patio Bonito or Monteria, but it seems safe to say that Colombia is not totally devoid of medical services. One could assume that, especially following decades of guerrilla violence and brigandage, the facilities would be of a lower standard than those that would be available to him in south-east Queensland, but the evidence does not suggest that the applicant's condition is acute or life-threatening.
Other international obligations
131. The Humanitarian Concerns Assessment concluded that while the overall security situation in Colombia remained poor, the absence of any substantial claim as to why the applicant fears being targeted for serious harm by guerrillas or government forces led to the conclusion that there are neither substantial grounds, nor a real risk, that he would be subjected to torture or to cruel, inhumane or degrading treatment, though there remained “a mere possibility that Alejandro Toro Martinez might suffer serious harm as a result of indiscriminate generalised or random violence”. But the fact that he has relatives in the United States only marginally increases the possibility of his suffering serious harm or being killed after returning to Colombia.
132. The applicant acknowledged that according to recent press reports (eg, editorial, “Colombia’s Chance”, New York Times, May 31, 2008), the recent deaths or Marulanda and other FARC leaders in recent months had created the most favourable conditions for an end to the violence than had existed for many years. But he argued that the messages were mixed and that the situation remained volatile.
133. Therefore, while it would certainly be premature to say that stability had returned to Colombia, the security situation is more positive than it was even when the decision under review and the humanitarian assessment were made. The applicant opined that he might face personal danger in “certain regions”, but did not assert that Córdoba was one of them. He knew of no particular problems of that nature in Patio Bonito. It is reasonable to conclude that the applicant would face no serious danger of personal harm by returning to Colombia.
134. The applicant told Jill about his criminal activities shortly before he was arrested in 1998, or less than a year after they first met. She elected to continue with the relationship. It might be thought imprudent to have purchased a prospective matrimonial home in 2007 at a time when she knew visa cancellation was still being considered.
135. At all events it is clear that any hardship or disruption suffered by an Australian party where a visa is cancelled receives less weight if the non-citizen’s criminal background was known to that person at an early stage (Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at [35]; Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 at [46]). Jill seems an honest and deserving woman, and any decision-maker would wish to avoid occasioning her any hardship, but she knew the facts and must have realised that there were risks involved in continuing with the relationship. Further, paragraph 2.17 of Direction No 21 stipulates that other considerations are to receive less individual weight than the primary ones.
136. Mr Weller presented a well-prepared and well-argued case for the applicant, but considering all the evidence I must conclude that the primary considerations of community protection and expectations outweigh the other considerations in this case.
137. The decision under review must be affirmed.
I certify that the 137 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: …………………[sgd]……………………………
R. Wallace, Associate
Date/s of Hearing: 4 June 2008
Date of Decision: 19 June 2008
Solicitor for the Applicant: Mr J Weller, John D Weller & Associates
Solicitor for the Respondent: Ms A Linacre, Clayton Utz
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