REIGO KALM and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 87
•21 February 2013
[2013] AATA 87
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5623
Re
REIGO KALM
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 21 February 2013 Place Melbourne The Tribunal affirms the decision made by a delegate of the Minister of Immigration and Citizenship on 14 March 2012 refusing Mr Reigo Kalm a Working Holiday visa.
....[sgd Egon Fice]....................................................................
Egon Fice, Senior Member
IMMIGRATION & CITIZENSHIP– Visa refusal – Working Holiday (temporary) (class TZ 417) visa – Substantial criminal record – Character test – Protection of the Australian Community – Nature and seriousness of the conduct – Risk to the Australian Community – Best interests of minor children – International non-refoulement obligations – Estonian citizen – Undisclosed criminal offences
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501, 501(1), 501(6), 501(7), 501F(3)
Schuster-McFadyen and Minister for Immigration and Citizenship [2011] AATA 547
Direction No 55 - Visa Refusal and cancellation under s 501
REASONS FOR DECISION
Egon Fice, Senior Member
21 February 2013
Mr Reigo Kalm is a 32 year old Estonian citizen. In 2009 he applied for and was granted a Working Holiday (Temporary) (class TZ 417) visa (Working Holiday visa). That visa permitted Mr Kalm to remain and work in Australia for a 12 month period commencing on the date of entry into Australia.
Mr Kalm entered Australia on 21 October 2009. His first port of disembarkation was Brisbane but he soon made his way to Albany in Western Australia where he worked for some three months picking berries. He went to Perth for a short period of time and then to the north-west of Western Australia, including Karratha, Broome and then to Carnarvon. In Carnarvon, he worked on a banana plantation. While in Carnarvon, between May 2010 and March 2011, he was convicted of four offences, the most serious of those resulting in a 7 month prison sentence.
Mr Kalm's Working Holiday visa expired on 21 October 2010. He had applied for another Working Holiday visa on 11 October 2010 and, in accordance with the Department of Immigration and Citizenship's usual procedure, was granted a Bridging Visa A on that day pending resolution of his visa application.
On 14 March 2012 a Delegate of the Minister for Immigration and Citizenship (the Minister) refused Mr Kalm's visa application because it had come to the Minister's attention that Mr Kalm had been convicted in Estonia for a number of offences for which he was sentenced to a total of 7 years imprisonment. Mr Kalm had not declared these convictions on his application for the first or second Working Holiday visa. The Minister considered Mr Kalm had a substantial criminal record and therefore did not pass the character test which is described in s. 501 (6) of the Migration Act 1958 (the Migration Act).
Where the Minister makes a decision under s. 501 of the Migration Act refusing to grant a visa, if the person holds another visa at that time (such as a Bridging Visa), the Minister is taken to have decided to cancel that visa as well (s. 501F (3)). Therefore, as at
14 March 2012, Mr Kalm became an unlawful non-citizen. His continued presence in Australia after that date was unlawful. Because Mr Kalm did not respond to the refusal letter, he was eventually tracked down and handed a copy of the notice of visa refusal on 7 December 2012. He signed an acknowledgement of receipt of the notice on that day.
Mr Kalm lodged an application seeking review of the Minister's decision by the Tribunal on 13 December 2012.
There was no dispute about the fact that Mr Kalm did not pass the character test which is set out in s. 501 (6) of the Migration Act. That is because for the purposes of that test, Mr Kalm had a substantial criminal record as that expression is defined in s. 501 (7). He had been sentenced to a term of imprisonment of 12 months or more in Estonia. That enlivened the discretion set out in s. 501(1) of the Migration Act which provides: The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The only matter which I am required to determine is whether the preferable decision was the exercise of the discretion to refuse to grant a visa.
THE EXERCISE OF DISCRETION
Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. A person or body (in this case the Tribunal) must comply with a direction made under s. 499 (1)
(s. 499 (2A)).The current ministerial direction is described as Direction No 55 which was made by the Minister on 28 July 2012 (the Ministerial Direction). It sets out the objectives in paragraph 6.1 which, relevantly, provides:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test.… Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3)…
The Ministerial Direction sets out the principles underlying the rationale for exercising the discretion in s. 501 of the Migration Act. Those relevant to this matter are as follows:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.…
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)…
Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part B of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable.
Paragraph 8 of the Ministerial Direction provides that I must take into account the primary and other considerations relevant to the individual case, noting there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. The division of considerations for visa holders and visa applicants recognises that a visa applicant should have no expectation that a visa application will be approved. The considerations which I must take into account are divided into primary considerations and other considerations. Paragraphs 8 (4) and (5) provide:
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Paragraph 11 of Part B sets out the primary considerations which I must consider. It provides:
11. Primary considerations – visa applicants
(1) In deciding whether to refuse a person's visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Whether Australia has international non-refoulement obligations to the person.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 11.1 of the Ministerial Direction provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It also states:
… There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a) The nature and seriousness of the person's conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 11.1.1 sets out matters to which I must have regard in considering the nature and seriousness of the person's criminal offending or other serious conduct to date. Those relevant to this matter are:
(a)violent and/or sexual crimes are viewed seriously;
(b)crimes committed against government representatives or officials due to the position they hold or in the performance of the duties are serious;
(c)…
(d)any conduct which forms the basis for a finding that a person does not pass the character test or is not of good character is considered to be serious;
(e)the sentence imposed by the courts for a crime or crimes;
(f)the frequency of the person's offending and whether there is any trend of increasing seriousness;
(g)the cumulative effect of repeated offending;
(h)whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
I have set out below Mr Kalm's criminal offending both in Estonia and Australia. His offending in Estonia is taken from a translated copy of his Estonian criminal record. The translations were not in dispute. His Australian criminal offending is taken from his Australian Federal Police criminal record.
Estonian offences
Date
Event
Sentence
26 December 2000
Committed an offence of 'unauthorised entry into the building, premises, vehicle or enclosed territory'.
Convicted on 16 February 2001
Fined €169.37
5 May 2001
Committed offence of 'use of alcoholic beverages in public places or being in a public place while intoxicated'.
Convicted on the 7 May 2001
2 days detention
18 June 2001
Committed offence of 'deliberate failure to comply with the lawful order of a police officer or special Constable'.
Convicted on 20 June 2001
4 days detention
Committed offences of:
· 'covert theft';
· 'theft in public by a person who has previously committed theft and/or by removing or damaging of locks or barriers';
· 'stealing of a motor vehicle for the second time'; and
· 'hooliganism'.
Convicted on 7 March 2002
·
· 1 year imprisonment
· 1 year, six months imprisonment
· 1 year imprisonment
· 2 years imprisonment
Aggregate sentence: 2 years, 5 months and four days (suspended sentence)
Probation period: 3 years.
Detained: 21/08/2001 – 07/03/2002
28 November 2002
Committed offence of 'breach of public order, disturbing the peace of other persons in a public place, or any other breach of public order'.
Convicted on 28 November 2002
Fined €11.50
17 May 2003
Committed offence of 'use of alcoholic beverages in public place or being in a public place while intoxicated'.
Convicted on 17 May 2003
Fined €19.17
17 May 2003
Committed offence under s. 218 Penal Code (misdemeanour)
Convicted on 17 May 2003
Fined €19.17
22 July 2003
Committed offence of 'use of alcoholic beverages in public place or being in a public place while intoxicated'.
Convicted on 22 July 2003
Fined €1.60
16 December 2003
Committed offence of 'use of alcoholic beverages in public place or being in a public place while intoxicated'.
Convicted on 17 December 2003
Fined €306.78
Committed offences of:
· 'illegal entry, illegal entry into a building, room, vehicle or enclosed area of another against the will of the possessor'; and
· 'aggravated breach of public order, breach of peace or public order'.
Convicted on 23 April 2004
· 1 month imprisonment
· 2 months imprisonment
· Sentence imposed: 2 years, 7 months and 4 days (aggregated sentence as a result of breach of probationary period from conviction on 7 March 2002)
4 May 2008
Committed offences of:
· 'causing property damage or physical injury by the driver of a vehicle or tram';
· 'operating of a motor vehicle or tram without driving licence'; and
· 'operating a motor vehicle which did not pass the roadworthiness test'.
Convicted on 18 August 2008
Fined €268.43
Australian offences
Date
Event
Notes
8 May 2010
Committed offences of:
· 'assault public officer'; and
· 'threaten to injure endanger or harm any person'.
Convicted on 14 May 2010
· Fined $1500
· Fined $500
10 May 2010
Committed offence of 'breach of bail undertaking'.
Convicted on 14 May 2010
Fined $100
2 July 2010
Committed offences of:
· 'assault public officer';
· 'obstructing public officers';
· 'disorderly behaviour in public'; and
· 'failed to comply with request to give police personal details'.
Convicted on 6 August 2010
· 7 months imprisonment;
· 1 month imprisonment;
· Fined $300;
· Fined $150.
Sentence 7 months imprisonment (concurrent)
Imprisonment 8 July 2010 – 7 February 2011
18 March 2011
Committed offences of 'exceed .08%'
Convicted on 21 May 2011
· Fined $700; and
· Licence disqualified for 5 months
There is little room for doubt that the offences Mr Kalm committed while in Estonia prior to entry into Australia can properly be described as serious. The most serious of those offences for which Mr Kalm was sentenced to 2 years 5 months and 4 days imprisonment on 7 March 2002 and for 2 years 7 months and 4 days on 23 April 2004 are, essentially, offences recognised in Australia as that of breaking and entering and stealing property. On the first occasion a motor vehicle was stolen and on the second occasion, Mr Kalm indicated that an engine was taken from a motor vehicle and there was some property damage. There was no suggestion that either of those offences involved alcohol. It also appears that as a result of the first conviction, Mr Kalm was placed on probation for a period of three years. Despite that, the second offence was committed within 12 months of the first.
At the hearing, Mr Kalm attempted to explain his offending by stating that he had been drinking at the time of the first offence. He said that the garage which was broken into and the car which was taken belonged to his stepfather. In his oral evidence Mr Kalm testified that he had a difficult relationship with his stepfather who was violent towards him. Mr Kalm also testified that on the second occasion when the engine was stolen, he had also been drinking. He also said that prison was good for him in that he had learned a lesson. He said that it changed him as discipline was good for him.
However, the history of Mr Kalm's offending in Estonia does not indicate he had learnt anything from his criminal behaviour in that country. He was convicted in February 2001 of breaking and entering for which he received a relatively small fine. That was followed in the next year by two offences which involved the use of alcohol, being intoxicated in a public place and failure to comply with the lawful order of the police officer. Following his first major conviction, in 2002 and 2003 he was convicted on five occasions which involved the consumption of alcohol in a public place, being intoxicated in a public place and committing a breach of the peace. Those events were followed by his second serious offence of breaking and entering and aggravated breach of public order. A translation of the Estonian Penal Code indicates that if a person is convicted of aggravated breach of public order, it includes the use of violence. The final offence committed in 2008 involved a road accident when Mr Kalm was struck by a motor vehicle while riding a motorcycle. Mr Kalm was seriously injured in the accident. He admitted he was unlicensed but appeared to indicate that it was not his fault.
Mr Kalm's offending in Australia is more fully documented. On 8 May 2010 Mr Kalm was a passenger in a motor vehicle which was involved in a minor collision in Carnarvon. The West Australian Police Incident Report states that the driver of the other vehicle involved in the accident attempted to obtain the registration of the car in which Mr Kalm was travelling and the details of that driver. According to the Report, Mr Kalm approached the driver of the other vehicle and pushed him in the chest region. He then used a glass beer stubby and swiped at the victim with it. Mr Kalm then chased the driver of the other vehicle around the parked car and threw the bottle at him, the bottle smashing against a glass window of a business premises. An off duty police officer attempted to intervene as other on duty police officers arrived. Mr Kalm was arrested only after being tackled to the ground where he further resisted arrest.
The Police Report also records that on arrival at the police station, the police officers requested Mr Kalm alight from the police vehicle but he refused on several occasions and became verbally abusive towards them. It was also reported that Mr Kalm, after being aided to the rear step of the vehicle where he had stood up, raised his right foot and kicked forcefully towards one of the Constable's temple region. He continued to direct verbal abuse at the Constable.
This incident was quite clearly serious and involved violence. Furthermore, the offence was committed against government representatives or officials in the performance of their duties. Disturbingly, it appears to be a continuation of the kind of behaviour for which Mr Kalm was convicted in Estonia before coming to Australia.
Following the first incident, Mr Kalm was released on bail on an undertaking that he appear at the Carnarvon Magistrates Court on 10 May 2010. He failed to appear and a warrant for his arrest was issued. He was arrested on 13 May 2010 when he apparently explained that he had lost the paperwork.
Mr Kalm's third offence in Australia is the most serious. According to an Australian Federal Police report dated 2 July 2010 and a Department of Corrective Services report dated 13 August 2010, Mr Kalm was found standing in a doorway on the footpath approximately 15 m from the entrance of a Tavern where he had been drinking and playing pool. He was urinating in the doorway. This was observed by number of persons passing by. Members of the police force were present at the Tavern due to an unrelated incident. One of the police constables approached Mr Kalm and told him to desist. He did not do so. The Constable told Mr Kalm that he had committed an offence and asked for his name. Apparently Mr Kalm said: I have forgotten my name and I don't have any ID. I don't have to tell you anything. Following a second refusal the Constable told Mr Kalm he was under arrest and took hold of his arm. This resulted in a scuffle between both police constables and Mr Kalm. Mr Kalm apparently struck one of the Constables with his palm to his eye. He was eventually subdued with a Taser. He was then taken to the Carnarvon Police Station where he was refused bail.
By way of explanation for his behaviour, Mr Kalm said that he was intoxicated. He became angry when asked to leave the local hotel due to his behaviour towards another patron who Mr Kalm said had disrespected him and his girlfriend. He said that while he was waiting for his girlfriend to leave the hotel, he had the need to relieve himself and did so because he had seen others do so in public.
Mr Kalm was sentenced to 7 months imprisonment for assaulting the police officer and 1 month imprisonment for obstructing police officers. A 7 month sentence was imposed to be served concurrently. In her sentencing remarks, Magistrate Richardson said:
The convictions in relation to the police officers are extremely serious and they have occurred some very short time after you having assaulted a police officer in May of this year. It seems that you are visitor to our country and that on each occasion when these matters have been brought before the court that you have been heavily intoxicated.
You have got a minimal record here but, of course, that is something that is untested and you have only been in this country for nine months. The assault on this particular occasion involved you striking the police officer in the face. You had a police officer in a head-lock, had him on the ground and you had to be tasered in order to release that head-lock on the police officer. On the previous occasion you had attempted to kick the face of a police officer.
It is my view that the current matter before the court – that is, the assault which took place on 2 July 2010 – is so serious in its circumstances that the only appropriate disposition would be one of immediate imprisonment. I have considered matters such as suspension, but in my view, that is not appropriate here. Your behaviour is such that you must be deterred form (sic) behaving in this manner and I consider the only way to do that is an immediate term of imprisonment.
Mr Kalm's final offence in Australia was committed in March 2011 when he was found to be driving a motor vehicle with an alcohol reading exceeding .08%. Despite Mr Kalm in cross-examination stating that he was not drunk, it is clear that he was almost twice the legal limit to be driving a motor vehicle. Although not attempting to excuse his behaviour, Mr Kalm explained that he was in fact avoiding further drinking with some of his friends by driving home rather than continuing with the drinking which had already taken place. With respect to Mr Kalm, this is a rather strange process of reasoning given the number of offences for which he has been convicted which also involved alcohol. I have no doubt Mr Kalm was aware that he was over the limit when he proceeded to drive home that evening but either did not consider that he would be caught or was simply prepared to disregard the law. I say that because his previous behaviour involving excess alcohol shows a clear disregard for laws involving the consumption of alcohol.
Also relevant for consideration under this heading is whether Mr Kalm provided false or misleading information to the Department of Immigration and Citizenship, including not disclosing prior criminal offending. Mr Kalm does not dispute, nor could he do so in the face of the evidence, that he provided false or misleading information to the Department of Immigration and Citizenship. In cross-examination, when asked whether he understood it to be important to disclose his criminal history when making an application for an Australian visa, he responded: I have no idea. In fact he agreed with the suggestion that he had previously said that he understood such a disclosure would simply cause more paperwork and may result in him being denied a visa.
On his incoming passenger card, Mr Kalm marked the No box against the question which asked him if he had any criminal convictions. When asked why he did this, he said he didn't know.
Mr Kalm lodged his second application for a Working Holiday visa on 15 October 2010 while incarcerated at Greenough Regional Prison following his conviction for assault at Carnarvon. He ticked the Yes box against the question whether he had been convicted of a crime or offence in any country (including any conviction which was now removed from official records). However, in the details which were required to be provided, he only recorded his Australian convictions. He did not mention his prior criminal record in Estonia.
Ms S Wende, a solicitor who appeared on behalf of the Minister, also submitted that Mr Kalm's criminal history demonstrated he had offended repeatedly and with increasing severity. There can be no doubt that Mr Kalm has offended repeatedly between 2000 and 2011. It is difficult, without further detailed information about the offences in Estonia, to conclude that the severity has increased. However, what can be said about the alcohol-related offences is that they have most certainly increased in severity resulting in violence being used against police officers. On that basis, I accept Ms Wende's submission that the severity of Mr Kalm's offending has increased.
In summary, the evidence clearly discloses Mr Kalm committed serious offences in the brief time that he was in Australia and also prior to coming to Australia. Those offences included violence which was directed against government representatives or officials in the performance of their duties. He spent a considerable period of time in prison in Estonia and seven months in Australia. The frequency of his offending between 2000 and 2011 had not abated at the time that he made his second application for a Working Holiday visa. He made false and misleading statements regarding his prior criminal convictions in Estonia in his first visa application, his incoming passenger card and his second visa application. I have no doubt whatsoever that in considering the matters which go to the nature and seriousness of the conduct, the factors I have referred to above weigh seriously against the grant of a second Working Holiday visa to Mr Kalm.
Risk to the Australian community
Paragraph 11.1.2 of the Ministerial Direction sets out the matters I must consider under this heading. Subparagraph (1) provides that I should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2 (2) provides that I should also consider whether the purpose of the intended stay in Australia reflects strong or compassionate reasons for granting a short-stay Visa. In making a risk assessment, I am required to have regard to:
(a) the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) the likelihood of the person engaging in further criminal or other serious conduct taking into account:
(i) information and evidence from independent and authoritative sources on the likelihood of the person reoffending; and
(ii) evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken); and
(iii) the duration of the intended stay in Australia.
As Ms Wende submitted, Mr Kalm's criminal history discloses a pattern of frequent offending between 2000 and 2011. Furthermore, the pattern of re-offending is disturbing as it discloses much of the criminal conduct was associated with excessive alcohol consumption. It also discloses a complete lack of respect for the law and the authorities empowered to enforce the law. In fact, despite numerous convictions, Mr Kalm continued to show disrespect for Australian law when he completed his second Working Holiday visa application which again failed to disclose his criminal convictions in Estonia. In cross-examination Mr Kalm was asked whether he attempted to contact the Department after he received the letter of 6 January 2012 informing him that the Department had information about his criminal activity in Estonia and giving him
14 days to respond. Mr Kalm said he did not and explained that at that time, he had formed a relationship with Ms Gretchen Kirkwood (who I understood was an Australian citizen) who he subsequently married on 19 January 2013 while in immigration detention. When it was put to him that his failure to respond was because he thought his application would be refused, Mr Kalm answered: yes. He said he then continued to work in Australia being paid by cash. He was subsequently apprehended at Clifton Hill railway station because, at that time, he was an unlawful non-citizen present in Australia.
In a report prepared by a Senior Community Corrections Officer at the Carnarvon Community Corrections Centre on 4 August 2010, the officer provided an actuarial risk assessment of Mr Kalm reoffending. The officer gave Mr Kalm a score of 34.7% which rated him a medium chance of rearrest in the following two years. The officer also stated that excessive alcohol use, heightened emotions and contact with authority figures increased his chance of re-offending. As it turned out, that assessment was accurate. On 21 May 2011 Mr Kalm was convicted on the drink/driving offence.
On the other hand, a number of witnesses gave evidence about Mr Kalm's general conduct after February 2012. In particular, his now wife, Mrs Gretchen Kalm, provided a written statement which was admitted into evidence. She also gave oral evidence at the hearing. She described meeting Mr Kalm at an art exhibition in Prahran. They saw each other regularly and after a while decided that Mr Kalm should move into the accommodation occupied by herself and her flatmate. Mrs Kalm said that her husband had told her, prior to moving in with her, that he had overstayed his visa and that he had also served a 7 months sentence in Australia for assaulting a police officer when intoxicated. When asked in evidence in chief if she understood what that meant, she explained that the Department would try to send him home. She also said that her husband did not tell her of his criminal conduct in Estonia.
Mrs Kalm testified that at the end of July 2012, she and her husband moved into her parents’ house in Blackburn for financial reasons. At about that time, she discovered that she was pregnant. She said her husband fitted in well with her family and that her parents saw him as an asset, not only paying board, but helping around the home. Mrs Kalm also testified that she had never seen her husband exhibit aggressive behaviour nor had she seen him drink to excess.
I also had in evidence a witness statement made by Jocelyn and Richard Pollock on
22 January 2013. Mrs Kalm is Mrs Pollock's daughter. Mrs Pollock also gave oral evidence at the hearing of this matter. She said she was first introduced to Mr Kalm on
6 April 2012 when her daughter and Mr Kalm joined her Easter family gathering. Mrs Pollock testified that she and her husband were aware of the offences committed by Mr Kalm which they believed was totally out of character, and that alcohol was the cause of his behaviour. She said that Mr Kalm was not a drinker and that during the time that he had lived in their home he didn't drink very much at all, occasionally having a wine with dinner. She described him as a very decent and gentle man who was excited about becoming a father.
I had in evidence a report from a prison education coordinator at the Greenough Regional Prison and also from a Welfare Officer at the Maribyrnong Immigration Detention Centre. Both reports indicated that Mr Kalm was always polite and respectful to staff. He had not been involved in any incidents or been placed on a behavioural management plan or in any way been disruptive. There were also a number of references from former employers who found he was generally a very good worker and highly reliable.
While the evidence certainly discloses a change in the behaviour of Mr Kalm since meeting and settling down with his present wife, it is simply not possible to ignore the
11 years of serious criminal behaviour prior to that. Also, as the Minister submitted, Mr Kalm has not provided any evidence that he has undertaken any formal rehabilitation despite having participated in various other educational programs while incarcerated. Of course there is also the evidence that Mr Kalm remained in Australia as an unlawful non-citizen after his bridging visa had been cancelled. He continued to work while he was in Australia until he was finally detained in December 2012.
On balance, it is not possible to conclude that Mr Kalm is no longer at risk of repeating his criminal conduct. Even though that risk may have diminished since his earlier offending, it nevertheless remains real although perhaps not to the same degree. However, even if the risk of Mr Kalm reoffending is now relatively low, given the nature of these offences, involving violence directed against police officers, it remains unacceptable. This factor weighs against Mr Kalm's application.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Mr G Mukherji of counsel, who appeared on behalf of Mr Kalm, submitted that I should take into consideration this factor given that Mrs Kalm was now some 8 ½ months pregnant.
Paragraph 11.2 of the Ministerial Direction deals with the best interests of minor children in Australia affected by the decision. Paragraph 11.2 (1) provides that decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child. Subparagraph (2) provides a that this consideration only applies if the child is or would be under 18 years old at the time when the decision to refuse to grant the visa is expected to be made. Subparagraph (4) sets out the following factors which must be considered where relevant:
(a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play positive parental role in the future (taking into account the length of time until child turns 18), and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experience any physical or emotional trauma arising from the person's conduct.
It should be immediately apparent that all of the considerations referred to in subparagraph (4) refer to a child that has a separate existence from its mother. I dealt with similar considerations in Schuster-McFadyen and Minister for Immigration and Citizenship [2011] AATA 547 at [53] – [62] when dealing with the Convention on the Rights of the Child. I have not altered my opinion about that. To attempt to apply the above factors where the child is yet to be born would be purely speculative. That cannot be correct. Furthermore, as I said in Schuster-McFadyen, it does not mean that consideration ought not be given to a pregnant spouse. However this fact should not be considered under the primary considerations in the Ministerial Direction. It properly falls within other considerations.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 11.3 of the Ministerial Direction deals with non-refoulement obligations. While those obligations must be given consideration if the person is in Australia, as is stated in subparagraph (2), the existence of a non-refoulement obligation does not preclude refusal of a person's visa as the power to refuse a visa is a fundamental exercise of Australian sovereignty.
In an interview conducted by an officer of the Department of Immigration and Citizenship (DIAC) on 6 December 2012 Mr Kalm was asked whether there was any reason why he could not return to his home country. Mr Kalm crossed the No box. He was also asked whether he was willing to depart Australia. He crossed the Yes box adding if I have to. This was despite the fact that in response to a notice of intention to consider refusal of his visa application dated 3 February 2011, Mr Kalm expressed concerns or fears about what might happen on return to his country of citizenship. He was asked about this in the course of his cross-examination and re-examination where he confirmed he was no longer afraid to return to Estonia. Therefore, I have not regarded this as a relevant consideration.
OTHER CONSIDERATIONS
As is stated in the Ministerial Direction, in deciding whether to refuse to grant a visa, other considerations must be taken into account where relevant. It is stated in paragraph 12 (1) that those considerations include but are not limited to:
(a) Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
(b) Impact of a decision to grant a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;
(c) Impact on Australian business interests if the person's visa application is refused.
In this matter, the only other relevant other consideration is the impact of visa refusal on immediate family members in Australia. In particular, I must examine the impact on Mrs Kalm and her parents.
The immediate impact which will be felt by Mrs Kalm if her husband is not granted a further Working Visa will be financial. While her parents have testified that they can support her for the next 12 months, because they are planning to retire and move to Bairnsdale, they will not be in a position to continue to support her and the child financially after that time. Mrs Kalm testified that she did not know how she would manage raising a child on her own, paying off a substantial loan for a new car which she recently purchased, meeting rent and other bills on her own. She said she wanted to stay in Australia because it was a wonderful place to live and raise a family as well as being close to her parents and friends. She did not want her parents to miss out on their only grandchild growing up. She said that Estonia did not have the same opportunities as Australia and she could not speak the language spoken in that country. Nevertheless, she also said that if her husband was sent back to Estonia, she would follow him, but that would possibly not be for at least two – three years.
However, despite her concerns about raising the child on her own for two – three years before being able to join her husband if his visa is not granted, Mrs Kalm was aware, before becoming pregnant, that Mr Kalm was unlawfully present in Australia. When asked whether she was aware that he possibly had to return to Estonia, she responded that she was aware that he could get caught. She was also asked in cross-examination about what she would do if he was required to return to Estonia, she answered: I would follow. It is clear that Mrs Kalm accepted the risk involved in continuing her relationship with Mr Kalm and subsequently falling pregnant to him.
Mrs Pollock testified that if Mr Kalm was sent to Estonia that would be emotionally devastating and horrid for her and her husband as well as for her daughter.
Mr Kalm also testified that his brother was currently present in Australia on a Working Visa holiday. However, as Ms Wende submitted, because the evidence indicated Mr Kalm's brother did not have a permanent visa, this consideration is not relevant.
In any event, even if Mr Kalm were granted a further Working Holiday visa, that would only permit him to remain in Australia for a further 12 months. There is no certainty at all that Mr Kalm would be permitted to remain and work in Australia on a permanent basis. In my opinion, while these considerations weigh in favour of Mr Kalm remaining in Australia, they do not outweigh the primary considerations which should generally be given greater weight.
CONCLUSION
There was no dispute that Mr Kalm did not meet the character test due to his conviction on a number of serious criminal offences committed in Estonia. Mr Kalm did not disclose this offending when he applied for his first Working Holiday visa. Had he done so, it is likely that the visa would have been refused. He was aware of this. Nevertheless, within a short period of time after arriving in Australia, he committed a number of serious offences including assaulting police officers. While those offences were alcohol related, that does not excuse or ameliorate the offending conduct.
When Mr Kalm applied for his second Working Holiday visa, he again failed to disclose his prior criminal convictions in Estonia. When officers from DIAC discovered his Estonian police record, Mr Kalm was provided with an opportunity to explain why, despite those convictions, he should nevertheless be granted the visa. By this time, Mr Kalm was obviously aware that it was unlikely that he would be granted the second Working Holiday visa and rather than respond, he decided to remain in Australia as an unlawful non-citizen. It was in that period that Mr Kalm developed a relationship with his now wife. She was aware at the time that Mr Kalm was an unlawful non-citizen and that he was at risk of being sent back to Estonia if found.
I have found that the relevant primary considerations weigh heavily in favour of Mr Kalm's visa application being refused. Furthermore, I am of the opinion that these considerations should, in this case, be given greater weight than the other considerations which weigh against the refusal of Mr Kalm's visa application. For those reasons I affirm the decision made by a delegate of the Minister on 14 March 2012 refusing Mr Kalm a Working Holiday visa.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior Member
....[sgd]....................................................................
Associate
Dated 21 February 2013
Date of hearing 14 February 2013 Counsel for the Applicant Mr G Mukherji Advocate for the Respondent Ms S Wende Solicitors for the Respondent Sparke Helmore
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