Roberto Demillo and Minister for Immigration and Citizenship
[2012] AATA 805
•16 November 2012
[2012] AATA 805
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3895
Re
Roberto Demillo
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 16 November 2012 Place Sydney The decision under review is affirmed.
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Mr Dean Letcher, QC, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – character test – substantial criminal record – application of Direction 55 under the Migration Act 1958
LEGISLATION
Migration Act 1958
SECONDARY MATERIALS
Australian Crime Commission, Crime Profile Series - Identity Crime (2011)
Direction [no. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
16 November 2012
The applicant is a 36 year old Philippines citizen resident in Australia since age 14 and now holding a Class BF Transitional (Permanent) visa. On 22 August 2012 the Minister’s delegate cancelled that visa under s 501(2) of the Migration Act 1958 (“the Act”) on the basis that the applicant did not pass the character test in s 501(6) of the Act, and that his discretion should be used to cancel the visa. From that decision the applicant seeks review by this Tribunal.
As the applicant has been sentenced to a term of imprisonment of 12 months or more he has a substantial criminal record in accordance with s 501(7) of the Act. In fact the applicant has received several sentences of 12 months. As a result, the Applicant fails the character test in accordance with s 501(6) of the Act.
This enlivens a discretion to cancel the applicant’s visa. The Tribunal must consider whether it should exercise this discretion. The primary considerations in that exercise as set out in the Ministerial Direction No. 55 are:
(A)Protection of the Australian community from criminal or other serious conduct.
(B)The strength, duration and nature of the person’s ties to Australia.
(C)The best interests of minor children in Australia.
(D)Whether Australia has international non-refoulement obligations to the person.
There is no persuasive evidence that any international non-refoulement obligations are relevant in the applicant’s case. “Non- refoulement” is a principle of international law that a person should not be returned involuntarily to a country in which he or she would face persecution. It was said by several witnesses that if the applicant were to be returned to the Philippines it “would basically be a death sentence for him” with “so much crime and poverty”, but these were emotive words rather than a realistic description. He has an extended family living there, his father holidayed there for five weeks recently and there was no material to support any concern of war, famine or persecution.
BACKGROUND AND EVIDENCE
The applicant has been convicted of over 150 offences on more than 25 separate occasions between March 1995 and 14 April 2010. He has been convicted of assault, larceny, possess housebreaking implements, custody of a knife, shoplifting, numerous drive unregistered and uninsured car while disqualified and, most recently, 85 charges of using false names and documents to obtain money by deception (‘identity theft’ and computer fraud). Curiously, although he has alleged illicit drug use for over 18 years he has not been charged with that offence.
APPLICANT’S CASE
Ms H has been a de facto partner of the applicant for most of 11 years and she is the mother of his child A born in 2004. She said that the applicant “had done some stupid things but had not hurt anyone”, believed that “jail has reformed him” and that if he was released into the community he would not go back to his previous life. She agreed that it would be possible for herself and A to go to live in the Philippines, but believed that for the applicant it would be a “death sentence”. She did not say why. She has never been to the Philippines.
Ms H described the applicant as a father with a close relationship and a special bond with his daughter. She agreed that in A’s early years the applicant had “not been around much” (in fact in jail 29 September to 13 August 2006), that he had been in jail 25 April 2008 to 24 October 2008, that she and the applicant had been separated during 2009 and he had been in jail since 14 April 2010. She said that the applicant had weekend access to A when they separated, and he had provided clothing and school needs if required although she herself had a well-paid job.
The applicant’s father gave evidence that he could provide employment for the applicant if he were released, and that life in the Philippines was very difficult with criminality and unemployment. Although the applicant had no immediate family there, he has six uncles and one aunt, with numerous cousins in his extended family.
Mr B is an electrician who had employed the applicant part-time in the past as a trades assistant and was willing to do so again full time. He believed that the applicant was capable of learning a trade although he had not chosen to do so.
Mr C is a minister, conducting a church which the applicant had attended several times a week in about 2009. He had visited the applicant in jail and believed that he was “so sorry about what had happened to him and he wanted to reform his way of life”. He had little knowledge of the applicant’s criminal history.
The applicant gave evidence and said of his most recent crimes:
I’m hooked already so they offered me a job and I did the crime…I didn’t think before, I didn’t think about my daughter’s life…the main reason I wouldn’t do anything [illegal] is my daughter.
The applicant said that after A began school he would telephone his daughter about her homework, buy her clothes, teach her to spell and to write her letters. He agreed that in A’s first four years he had not lived in the same house and that in the last four years he had been in jail. He said: “I need her, she is my life. I’d love to see my daughter grow, I don’t want her to have a broken family. One more chance to make it right… I’m willing to do the hard work…”
In cross-examination he was asked whether in 2007 he had received an official Immigration letter warning that his visa might be cancelled if he committed crimes. His first response was: “I received it. I didn’t understand it”. He agreed that he had lived at the addresses shown. Later in re-examination he alleged that he had received the letter not in 2007 but only a few months ago. He said that he had given up drugs after his arrest but agreed that he had tested positive for amphetamines in jail eight months after entering custody (but said “that’s when I decided to do the right thing…keeping busy, doing programs, I’ve reformed since that time”).
The applicant stressed his love for his daughter, her close bond with him and, as he saw it, the importance of her growing up in an unbroken family.
RESPONDENT’S CASE
The respondent’s case was documentary, including the applicant’s long list of offences, commencing less than five years after he arrived in Australia. The applicant has been convicted on 25 occasions of over 150 criminal offences, and has been jailed six times between 1995 and 2010. The most relevant and serious assessment of the applicant’s character appears in the District Court judge’s remarks on sentencing him on 1 July 2011 to imprisonment for three years seven months after being in custody on remand for about one year and two months: i.e. effectively a period of about four and 3/4 years.
The 85 offences for which the applicant was sentenced on 1 July 2011 did not include a further 16 offences the applicant asked to be taken into account. The offences involved various transactions of up to 20 steps and gave rise to multiple charges. They are remarkable for their complexity and sophistication. They can be termed ‘identity theft’ in that the applicant and others were able to assume the identity of innocent bank account holders and then change the account details, transfer funds and withdraw the person’s money.
The first batch of these offences began on 17 November 2009 when, using a counterfeit South Australian birth certificate and Medicare card, the applicant obtained an RTA photocard in a false name. Ten days later, he opened a Westpac bank account in the false name using the photocard. That same day, a person purporting to be a Mr S [a genuine Westpac account holder] rang Westpac telephone banking asking for changes to his accounts. This was the applicant or an accomplice. The real Mr S was entirely unaware of this and in the end was to lose $45,000 from his account.
The next day the false Mr S requested an addition to Mr S’s Mastercard account - a new cardholder, but this was the false name on the photocard and the new Westpac account. The next day [a Sunday] the Westpac computer base was accessed by telephone and two unauthorised transfers were made to the fraudulent account. Two days later a telephone inquiry to Westpac obtained the balance on the fraudulent account and 22 minutes later the applicant went to the Westpac, Newtown branch, produced the false RTA photcard as identification, and withdrew $3,000 from the account.
Later that same day, someone saying he was Mr S rang Westpac telephone banking and transferred $25,000 from the S account into the Mastercard account and four minutes later, by telephone, it was transferred into the fraudulent new account. Ten minutes later, the applicant went to Westpac, Lakemba branch, identified himself by the RTA photocard and withdrew $5,000. Less than half an hour later the applicant went to Westpac, Campsie branch, and withdrew further amounts of $10,000 and $9,000, using the same technique. An hour later, someone saying he was Mr S rang Westpac and transferred $18,000 from S’s account into his Mastercard account, and two minutes later moved $20,000 from that account to the fraudulent account.
Further withdrawals, using the same false documents, were made that afternoon by the applicant at Ashfield and next day at Merrylands. When arrested in April 2010 the applicant had the counterfeit birth certificate, Westpac Mastercard and other documents all in the false name used by the applicant.
There were other similar sequences of events using counterfeit identification including British and Philippines passports, a Maritime Board boat drivers licence and several Medicare cards. On numerous occasions, changes to customer profiles and transfers of genuine accounts were made by telephone and withdrawals were made using unauthorised PIN validation. The applicant showed a considerable grasp of the banking system and how to exploit it.
At the sentence hearing, the applicant gave evidence that he had been recruited by his drug supplier, and that for only 10 per cent of the money he would be given the false documents, would present them at a bank and return the proceeds to his suppliers. He said that he was using three grams of “ice” daily which represented about $1,000 per day. He was cross-examined in the District Court about fake documents found in his possession long after the bank attendances, the fact that 10 per cent would not have bought anything like the amount of drug he said he used, his refusal to name anyone else involved and his use of many false names and identities. The judge made a finding that the applicant had lied about many facts including the extent of his drug use and the amount he had received from the crimes, stating:
I do not consider the offender’s evidence to be trustworthy or reliable. He is after all a practised liar. Additionally, as demonstrated in effective cross-examination his participation in the offences could not have allowed him to fund his habit because at a rate of a reward of only ten per cent he would have earned only some $10,000 or so over the period of one year whereas his own ice habit was said to be costing him about $1,000 to $1,200 per day as at December of 2009.
The judge said that she would sentence on the objective facts admitted by the pleas of guilty or proved by the Crown and stated:
In so proceeding it should not be thought that the offender’s criminality could somehow be described as minor. It must be recognised that the offender played an active and central role in this enterprise. He was an integral part in what was clearly an organised criminal enterprise…
She said that she did not believe the applicant’s account of his role but could not be certain exactly what it was. Similarly, I did not believe the applicant when he said in the Tribunal: “I’m hooked already so they offered me a job and I did the crime…” if by that he meant that, addicted to drugs, he was offered a ready-made simple role to carry out someone else’s plan.
I agree with the judge’s finding that
…it was a deliberate choice on his part to participate as he did and to do so repeatedly over the period that he did. The fact that a number of transactions followed closely upon the fraudulent transfer of money over the phone shows that on those occasions where it cannot be proved that it was the offender who made that unauthorised computer access he nevertheless must have been in close contact with those who did.
Nevertheless, the judge believed that the applicant did have a drug problem, had “a degree of insight into those problems” and was “finally motivated to address his problems” although she was “unable to affirmatively conclude that the offender’s prospects of rehabilitation are good or that he is unlikely to re-offend…”
The pre-sentence reports noted the applicant’s story of struggle with drugs, alcohol and gambling, but no successful attempts at change and with a long history of criminal offences.
A. ASSESSMENT OF FUTURE RISK TO THE COMMUNITY
Protecting the Australian community from future criminal conduct is one of the primary considerations when deciding if a visa should be cancelled.
The particular principles set out in clauses 9.1 and 9.1.1 of the Direction concerning nature and extent of risk which I am directed to consider are:
1. Violent and sexual crimes are viewed very seriously
The applicant’s offences are neither violent nor sexual.
2. Crimes against vulnerable members of the community are serious
Except insofar as we are all vulnerable to theft by computer manipulation and identity theft, the victims here were not particularly personally vulnerable. Their savings appear to be always at some risk given the ease with which the banking system can be manipulated.
3. Sentence imposed by the court
There was a considerable jail term imposed on a background of persistent antisocial behaviour and many warnings, ‘last chances’ and promises that things would be different.
4. Frequency of offending and any trend of increasing seriousness
The applicant showed high frequency repetitive disregard for the law with his offences increasing in seriousness. The last batch of crimes was carefully planned, pursued thoroughly and very profitable for not a great deal of time and labour. The degree of sophistication shown by obtaining counterfeit passports, false maritime licences and other identification documents and the use of the telephone and computer banking systems to change profiles and transfer funds makes the last substantial group of offences a very serious development of the applicant’s criminal career. They are a level beyond the shoplifting, drive while disqualified and petty larceny of earlier years.
The Australian Crime Commission notes that:
The ability to hide true identity is critical to the successful operation of organised crime groups. Identity theft is one of the fastest growing crimes in Australia.
While stealing someone’s identity is a crime in itself, identity theft also provides a foundation for other serious crime. Fraudulent identities may be used for money laundering, tax evasion, to obtain personal loans, enter into credit agreements, deal in stolen motor cars, or to protect the true identities of organised crime members.
5. Cumulative effect of repeated offending
The frequent offences of the applicant have led to repeated spells in jail, alienation from his immediate family and comparative isolation from the Australian law-abiding community. He retains the affection of Ms H and his father is prepared to offer work, but the applicant was virtually unemployed for five years before his last sentence, was separated from Ms H until shortly before arrest and was deeply into the crime and drug milieu. His contact with his daughter and ability to parent her seem fragmentary and uncertain. From the community’s side, the applicant’s continual law-breaking makes it appear that the risk of re-offending is very high and the type of recent offences is socially corrosive, increasing in incidence and likely to foster other kinds of crime as noted above.
B.BEST INTERESTS OF MINOR CHILDREN
A primary consideration is the best interests of the applicant’s daughter, A, born in 2004 and now aged eight and a half years. A has always lived with her mother Ms H. By contrast, the applicant has been in jail during A’s lifetime: 13 February to 16 March 2005, 6 April to 16 April 2005, 28 July 2005 to 13 August 2006, 9 January to 8 July 2007, 26 March to 24 October 2008, 10 February to 13 February 2010 and 13 April 2010 to September 2012 (and thereafter in Immigration detention). That is, of A’s approximately 102 months of life the applicant has been out of jail for just 29, separated from her mother for about two of those years and drug addicted and/or in fear of arrest during the balance.
In general, children’s best interests are best served by living with their natural parents. Applying Ministerial Direction 55 clause 9.3, I take into account the long periods of absence, lack of actual parenting behaviour, the fact that A has a constant and caring mother, the likelihood that the applicant will re-offend and be absent from the relationship in the future, and the dubious nature of the quality of parenting that the applicant would be able to provide if he were to remain in Australia. I find that only a minor degree of weight should be given to the likelihood of detriment to A if the applicant were to be deported.
C.STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA
The applicant speaks English well and has been in Australia for 22 of his 36 years. His community ties are extremely limited given his times in jail, long periods of unemployment and the effects of drug addiction. He began offending within five years of arrival, has not contributed to the community in any notable positive way and has been substantially isolated from usual community activities. This factor does not assist the applicant.
D.ANY INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
As noted above, there is no evidence that if the applicant were to be returned to his country of birth that he would suffer any discrimination, persecution or ill-treatment. The non-refoulement principle of international law would not be infringed by deportation to the Philippines. Australia has no obligation arising under this primary consideration
OTHER CONSIDERATIONS
Although not primary considerations, the decision maker is obliged to take into account any real detriment arising from the person’s age, health, language or social barriers if deported. I find that there are no significant detriments. I do not believe that there would be any serious impact on the applicant’s immediate family if he were deported, except upon Ms H and A, but I have dealt with those aspects above.
FINDINGS AND CONCLUSIONS
The applicant fails the character test and, applying the Ministerial Direction in the exercise of my discretion, it is my view that his visa should be cancelled. The applicant has a long criminal history escalating in seriousness and showing little sign of reformation. There are significant risks of re-offending with an unacceptable risk of harm to the community if he were allowed to remain. I have taken into account as a primary consideration the best interests of A, and my view is that those interests are not likely to be seriously affected by cancellation of the visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member
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Associate
Dated 16 November 2012
Date(s) of hearing 25 October 2012 Date final submissions received 29 October 2012 Advocate for the Applicant Superior Migration Solicitors for the Respondent Minter Ellison
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