Re Weti and Minister for Immigration and Multicultural Affairs - [2006] AATA 1054

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATION DIVISION		) N2006/1237 ) )
Re:	ANYA WETI
Applicant
And:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal	The Hon R N J Purvis AM QC, Deputy President
Date	8 December 2006
Place	Sydney
Decision	The decision under review is affirmed.

___________________________
The Hon R N J Purvis AM QC
Deputy President

VISA CANCELLATION – New Zealand citizen – criminal activities over a ten year period – drug related – not of good character – risk of re-offending – deterrent effect – protection of community

REASONS FOR DECISION

8 December 2006	The Hon R N J Purvis AM QC, Deputy President
the application

On 14 September 2006 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) reasonably suspecting that Ms Anya Francisca Weti (“the Applicant”) did not pass the character test, exercised her discretion under section 501(2) of the Migration Act 1958 (“the Act”) and cancelled the Special Category Visa Subclass TY-444 then held by the Applicant.
The Applicant now seeks review of the Respondent’s decision.
In the Statement of Reasons supporting that decision it was amongst other matters stated:
“…
Character Test
(1)On 21 December 2005, at Burwood Local Court, Ms Weti was convicted of Shoplifting and Larceny offences for which she was sentenced to 9 months imprisonment with a non parole period of 6 months.
(2)Ms Weti has additional convictions for Shoplifting and Break and Enter Building, for which she has received sentences of 12 months or more imprisonment.
(3)As a consequence of her sentences to imprisonment of more than 12 months, Ms Weti is deemed to have a substantial criminal record and not to pass the character test by virtue of section 501(6) with reference to section 501(7)(c) of the Act
…

Protection of the Australian Community
(7)I gave primary consideration to the protection of the Australian community taking into account the seriousness and nature of Ms Weti’s conduct, the likelihood that such conduct might be repeated and general deterrence.

Seriousness and nature of conduct

(9)The nature of Ms Weti’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.

Risk of recidivism
(10)I considered that Ms Weti had previously been considered for visa cancellation and that, on 1 April 2005, whilst Ms Weti was serving a term of imprisonment, a delegate of the Minister decided not to cancel her visa but instead decided to issue her with a written warning that any further offences would result in a fresh assessment being made to again consider cancellation of her visa.
…
(12)On 21 December 2005, at Burwood Local Court, Ms Weti was convicted of further Shoplifting and Larceny offences for which she was sentenced to 9 months imprisonment with a non parole period of 6 months.
…
(14)… I considered that, during her periods of incarceration, Ms Weti had 6 internal infringements recorded against her …
(16)… I assessed that there is a high risk that Ms Weti may continue to offend once released back into the community.
Deterrent to others

(17)I considered that some of the offences committed by Ms Weti are considered by the Government to be very serious and that the Government has a strong interest in deterring other non-citizens from committing offences of this nature …

Expectations of Australian Community
…
(20)In view of the frequency and seriousness of Ms Weti’s offences, I believe that the Australian community would expect Ms Weti’s visa to be cancelled and for her to be removed from Australia. …
Other Considerations
…
(22)In reaching my decision, I also took into account other considerations, in particular, the extent of disruption that would be caused to Ms Weti and her immediate family here in Australia.
…
(25)I found that the cancellation of Ms Weti’s visa and her subsequent removal from Australia would cause Ms Weti some inconvenience and possible hardship, particularly in view of her claim that she has no contact with anyone living in New Zealand. …”

I make mention of the above reasons as they tend to identify the areas of concern in this application.

the hearing of the application

Prior to the hearing of the application the Applicant was represented by Mr Christopher Levingston, Solicitor of Christopher Levingston & Associates, Lawyers. On 6 November 2006 Mr Levingston gave notice in writing to the Tribunal that he was unable to appear for the Applicant at the Hearing. An adjournment of the Hearing was granted to the Applicant. The Applicant then appeared on her own behalf. The Respondent was represented by Mr Michael Palfrey, Solicitor, of Clayton Utz, Lawyers.
The documents provided to the Tribunal pursuant to the provisions of the Act and the Administrative Appeals Tribunal Act 1975 were admitted into evidence as exhibits and marked G1 to G13. The Applicant gave evidence upon which she was cross-examined.

the issues and the applicant’s contentions

It was conceded by Mr Levingston on behalf of the Applicant that she failed the character test by reason of her substantial criminal history. Accordingly the discretionary factors referred to in the Minister’s Direction 21 are relevant.
It was contended by Mr Levingston that the following circumstances warranted consideration in the context of the Minister’s Direction, namely:
·The Applicant’s initial entry to Australia on 19 June 1985 was with the intention of permanently residing in Australia.
·To all intents and purposes the Applicant has resided continuously in Australia since 19 June 1985 to date.
·Notwithstanding the Applicant’s criminal conduct the discretion not to cancel her visa ought to apply by reason of the following:-
(1)    The Applicant’s length of residence in Australia (21 years);
(2)     The Applicant’s family disposition;
(3)     The Applicant’s past and present community ties;
(4)     The Applicant’s sincere regret and remorse about her criminal conduct.
·The Applicant’s addiction to narcotics since the age of 15 years has driven her to commit anti-social acts in order to sustain her addiction and to that extent the Applicant’s risk to the wider Australian community is mitigated by the treatment of her addiction.
·The Applicant’s criminal history although suggestive of a risk of recidivism is properly characterised as being “low” by the Applicant voluntarily participating in community treatment programs.
·The expectations of the Australian community would not traverse the general expectation that a person who serves a custodial sentence for drug related offences would following a course of treatment in custody be rehabilitated and be permitted to remain in Australia.

relevant legislation and provisions of minister’s direction 21

The provisions of the Act relevant to this application are as follows:
“501
...
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6)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 in subsection 7); or
…
Otherwise, the person passes the character test.
(7)For the purposes of the character test a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
If the Tribunal is satisfied that the Applicant does not pass the character test then the discretion provided for in section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually outweigh a primary consideration.
Part 2 of the Ministerial Direction 21 as here relevant states:
Protection of the Australian Community

2.4The 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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
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)
Seriousness and Nature of the Conduct

2.6It is the Government’s view that the following are examples of offences considered by the Government to be very serious:
(a)The production, importation, distribution, trafficking (including possession for this purpose), 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 young Australian’s 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;
(b)Organised criminal activity resulting in a conviction in Australia or elsewhere;.
...
Further, Ministerial Direction 21 provides that:
2.7 It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision makers should have due regard to the Government’s view in this respect, including:
(a)The extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)The repugnance of the crime:
·Crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
…

2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)
The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

General Deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) offence by other persons

2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)The nature of the offence may be as such that the visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian Community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen 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. Decision-makers should have due regard to the Government’s view in this respect.

relevant facts and findings of fact

The Applicant was born in New Zealand on 15 December 1981. She first arrived in Australia with her parents on 19 June 1985 as a New Zealand citizen. Since that time she has left Australia, travelled to New Zealand and returned to Australia on six occasions, the most recent travel being in 1996.
After her initial arrival in Australia the Applicant attended primary school and then Moorefield Girls High School where she remained till Year 10, leaving school when she was aged about 16. Her parents have divorced and each has remarried. She has a brother now aged 20 years, a half sister the daughter of her mother aged five years, and a half sister and half brother, (daughter and son of her father) aged four years and three years respectively. The Applicant’s natural parents both live with their current spouses in suburbs of Sydney.
The Applicant first offended in 1996 whilst still at school. She said she started using drugs at about this time. It was then cigarettes and marijuana. Later it became heroin. The Applicant had many convictions between 1996 and 2005, she first being sentenced to a term of imprisonment in 2002. Whilst serving her periods of detention and prior to her November 2005 conviction she completed courses in Responsible Service of Alcohol, Responsible Conduct of Gaming and obtained certificates in Hotel Reservations and Reception. She had also prior to the November 2005 conviction been involved in a community project operated by the jail, as well as participating in external sports and recreation activities. In respect of the former the Officer-in-Charge of the Mobil Outreach Program stated:
“Anya has been an active member of the team and is an excellent worker and presents herself with confidence and maturity.”
There is not any evidence of similar activities during her most recent incarceration.
In March 2005 the Applicant whilst at Emu Plains Correctional Facility wrote that she had been “currently” attending an alcohol and other drugs counsellor to assist and address her drug problems. She said she attended Narcotics Anonymous. She said at that time she believed she had rehabilitated herself. Her family was her “total support network”. She then maintained:
“I have learnt a lot about myself whilst in custody and I now understand that I have made many mistakes that I can learn from and progress in a positive way. Not only did this experience assist me with my personal growth, it has also brought me closer to my family, and I have realised the importance of them in my future life.”
It was at that time her mother also wrote a letter. In it she said:
“In the last few years, my daughter, as well as my son, have undergone a very traumatic experience with the separation of myself and my ex-husband, and has had a lasting impression on Anya. …
When Anya is released, she will be coming back to our family home to live where she can start to rebuild her life and hopefully contribute towards making amends for things that she has taken for granted. All I can ask at this time as a concerned and loving mother is for my daughter Anya to have the opportunity to prove herself in this country that she’s only ever known as her home.”
The mother did not prepare an update to her February 2005 letter but in September 2006 affirmed its truth. Between the time of her February 2005 letter and the present the Applicant was convicted of further offences and served an additional term of imprisonment.
The Applicant’s father did not provide any material in support of his daughter nor did any other member of her family.
In September 2006 the Applicant in her response to the Respondent’s current consideration of her visa cancellation stated:
“Whilst being in custody, I have addressed my negative behaviour and drug problem that has caused my family and me a lot of stress and pain throughout the last couple of years. I’ve been seeing a drug and alcohol counsellor and a psychologist on a regular basis, and will continue to do so when I am released from custody.
I truly believe that if I am given the opportunity to stay in Australia with my family I will prove to the Australian community that I am now a valuable member of society” (G11).
The Applicant has previously been considered for visa cancellation under section 501 of the Act. A warning was issued to her by letter dated 5 April 2005 to the effect that “conviction for any further offences will result in a fresh assessment being made to again consider cancellation of your visa” (G6).
The Applicant did re-offend. She was notified on 29 August 2006 of the current intention to consider cancellation of her visa. She is presently being detained at Villawood Detention Centre having been released from Emu Plains Correctional Centre on 15 September 2006.

applicant’s criminal history

It is not necessary for me in these reasons to detail the lengthy criminal history of the Applicant as noted on the New South Wales Police Criminal History Bail Report. Suffice to say that from December 1996 when the Applicant was 15 years of age up until 2005 the Applicant engaged in criminal activity ranging from Possession and Illegal Use of Prohibited Drugs, Shoplifting, Possession of Goods Reasonably Suspected of Being Stolen, Administering Prohibited Drugs, Resisting Arrest, Larceny, Break and Enter, Receiving Stolen Property, Non-compliance with Good Behaviour Bonds, Obtaining Money by Deception, Larceny, Receiving and Disposing of Stolen Property and other like offences. The property involved in the various offences ranged up to $15,000. In February 2004 as a consequence of a conviction for Break and Enter she was sentenced to a term of 15 months imprisonment subject to parole. In 2006 when she was again convicted for Shoplifting she was sentenced to a period of 9 months subject to parole. On a number of instances the Applicant appealed against the severity of the sentences but in each case the conviction was confirmed.

Whilst incarcerated and between 2 December 2004 and 28 May 2006 the Applicant has had six internal infringements recorded against her.
The Applicant undoubtedly has a long history of anti-social conduct. On her own evidence much of this activity has been in order to obtain saleable goods to fund her own drug addiction.
The Applicant’s criminal activity is not acceptable by the standards of the Australian community. It was and is to be seen as the irrational behaviour of a drug influenced person extending over a long period of time.

character

There is not any issue that the Applicant by reason of the provisions of section 501 of the Act is a person not of good character. The periods of her sentences alone are sufficient to make this finding. I am satisfied on the evidence before the Tribunal that within the meaning of the Act the Applicant is a person not of good character.

consideration of discretionary factors

The Applicant has a substantial criminal record. The offences have included drug related offences, Shoplifting, Resisting Arrest, Larceny, Break and Enter and Failing to Comply with the Terms of Bail and Good Behaviour Bonds. Her criminal record demonstrates a pattern of repetitive and constant offending over a 10 year period. It is the seriousness and nature of her conduct that according to the Respondent warrants cancellation of her visa. There are a number of the offences committed by her that are said to be “very serious” pursuant to the Minister’s Direction 21 involving as they do property invasion and serious theft. The occasion in 2004 when she was sentenced to a term of 15 months imprisonment for Break and Enter involved the stealing of goods of a value estimated at $15,000, a conduct it is said against the community to be serious. The term of imprisonment and other sentences imposed on her as well the number of offences she has committed over the ten year period demonstrates this incident of her behaviour. A relatively short time elapsed between her release from imprisonment from her 2004 conviction and the 2005 offence. She has committed criminal offences in order to support her narcotic addiction. This on the Respondent’s submission does not mitigate against the serious of her conduct.
The Applicant admits her conduct but attributes it to initial problems associated with a dysfunctional family. At an early age and whilst still at school she began to use drugs, marijuana and commit minor offences. She progressed to the use of other drugs and in due course heroin. Her addiction led to a need for money and hence the more recent and more serious anti-social conduct. Warnings by Magistrates and Judges were to little avail. Her parents were divorced and in due course remarried. At one time the Applicant was far removed from the comfort and influence of her father. This situation she says has now changed and she has a good relationship with both her parents, her siblings and other relatives in Australia. She will live with one or other of them if allowed to remain in this country.
There is a clear risk that the Applicant my re-offend. Her history is one of repeated criminal conduct. This is demonstrated as the Respondent submits by “the sustained and repetitive nature of her criminal activity since 1996”. She was warned about the risk of her visa being cancelled in 2005 if she re-offended. She paid no heed to the warning and went on to re-offend.
It is difficult for the Tribunal to have confidence in the Applicant’s statements as to rehabilitation and intent to make a positive contribution to the Australian community if she is allowed to remain. She has not in the past shown any indication of an effort let alone an ability to change her mode of behaviour. When visa cancellation was being considered in 2004 she maintained that she had been rehabilitated and intended to make a positive community contribution. However she engaged in further criminal activity. But rehabilitation is of course possible. The question remains where and when?
The Respondent maintains that an affirmation of the decision under review could prevent or discourage like minded conduct by others. This is true. Non-citizens are to be reminded that their stay in Australia is not a right but a privilege. It is granted by the Australian Government on behalf of the Australian citizens to people who are prepared to obey the law and if possible make a constructive contribution to the Australian community. If a non-citizen does engage in serious criminal conduct she or he is to realise that this conduct might well result in visa cancellation.
The community is also to be protected from conduct that is harmful to it and its citizens in a general and in a specific sense. The proliferation of the use of drugs is an instance of concern. If there was not a use of narcotics substance the life and commercial activity of the peddler would be the more difficult. When the use of drugs leads to the commission of other crimes the like of those engaged in by the Applicant a situation arises where the community has the greater need to be protected.
The community expects no less. Where a non-citizen engages in criminal conduct on what can only be described as a repetitive basis continuous and regardless of the interests of other persons it can only ask that consideration be given to that person being deprived of the privilege to remain. It is in its interests to be protected from the likelihood of a repeat of past conduct.
The Applicant does not have any children.
The Respondent maintains that the seriousness of the Applicant’s conduct and the undoubted risk of her re-offending are such as to outweigh other lesser considerations.
Disruption would result to the Applicant’s family. Her parents reside in Sydney. She maintains that she has a good bonding now with each of them although it is noted neither attended the Hearing. The mother affirmed her 2005 statement. The father did not provide any information to the Tribunal. There was not any evidence about the Applicant’s relationship with other members of her family or members of the community.
The Applicant would herself experience harm, disappointment and apprehension at having to return to New Zealand. She has relatives in that country but has not maintained a close association with them. This no doubt would have to be activated. She is young and has obtained training whilst in jail which will assist her in a search for employment.
The Tribunal is conscious of the anxiety being experienced by the Applicant. It is not an easy decision to make determining as it does the future of a young woman. But she is the author of her own destiny. She committed the offences well knowing the consequences. She was warned but this indication of intent was seemingly not taken seriously. It was ignored.
The Tribunal is satisfied on the basis of the evidence before it that the protection of the Australian community, its expectation and the likelihood of the Applicant re-offending override other considerations and warrant the visa being cancelled.
The decision under review is accordingly affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President

Signed: .................................
Associate

Dates of Hearing        27 & 28 November 2006
Date of Decision  8 December 2006
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Mr Michael Palfrey, Clayton Utz, Lawyers