Rodriguez and Minister for Immigration and Multicultural Affairs
[2006] AATA 618
•12 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 618
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/501
GENERAL ADMINISTRATIVE DIVISION ) Re MAXIMO ARMANDO PANTOJA
RODRIGUEZApplicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, AM Q.C, Deputy President Date 12 July 2006
Place Sydney
Decision The decision under review is set aside.
[Sgd] The Hon R N J Purvis, AM Q.C, Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – resident return visa – character test – substantial criminal record – whether Ministerial discretion should be exercised in Applicant’s favour – best interests of the Applicant’s two children a primary consideration – protection of the Australian community – expectations of the Australian community – protection of the Australian community and the alleged expectations of that community do not override the other considerations including the best interests of the children – humane factor and compassion relevant - decision under review set aside.
Migration Act 1952 – sections 501(2), 501(7)(c)
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
REASONS FOR DECISION
12 July 2006 The Hon R N J Purvis, AM Q.C, Deputy President
the application
1. On 20 April 2006 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) cancelled the class BF-R resident return visa of Mr Pantoja Rodriguez (“the Applicant”). The basis upon which the visa was cancelled was that the Applicant was not a person of good character within the meaning of section 501(2) of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in favour of the Applicant.
2. In the reasons for the cancellation decision the Respondent, amongst other matters, stated:
“…character test
(62) On 5 March 1997, Mr Pantoja Rodriguez was sentenced by the Supreme Court in New South Wales to 13 years and 6 months imprisonment with an additional term of 4 years and 6 months for the offence of murder
…
(64) As a consequence of the sentence received by Mr Pantoja Rodriguez he is deemed to have a substantial criminal record and not to pass the character test by virtue of section 501(6)(a) with reference to section 501(7) of the Act
…
Seriousness and nature of conduct
…
(68) Mr Pantoja Rodriguez was convicted of murder. I consider this offence to constitute a crime that I consider to be very serious under paragraph 2.6 of the Direction.
…
(69) I considered that Mr Pantoja Rodriguez’s criminal conduct would have had a devastating effect on his wife’s family and his own family causing them sorrow and distress. His conduct has deprived his sons of their mother from a very young and vulnerable age. I also considered the circumstances of the crime and the fact that he continues to deny guilt.
(70) I found that the nature of the offence committed by Mr Pantoja Rodriguez and the effect on the community was such that I gave this consideration substantial weight having taken the view that the Australian community was entitled to protection from such conduct.
Risk of Recidivism
(71) I considered Mr Pantoja Rodriguez’s criminal behaviour, and note as did Judge Graham Barr, that the process of rehabilitation cannot be taken very far unless Mr Pantoja Rodriguez comes to terms with his criminality.
(72) I took into account that Mr Pantoja Rodriguez had no convictions but considered that the offence is a very violent crime.
(73) Whilst I considered that Mr Pantoja Rodriguez has utilised his time in gaol effectively by participating on a number of programs demonstrated by his good work reports, I also considered that until he accepts guilt and displays remorse he will be unable to successfully progress with his rehabilitation
(74) I assessed that there is a continued risk Mr Pantoja Rodriguez might re-offend and given the nature of the offence and the effect on the community I considered that this was unacceptable. I placed considerable weight on his risk of recidivism.
Deterrent to others
(75) In considering whether the cancelling of Mr Pantoja Rodrigeuz’s visa would act as a deterrent to other non-citizens who might engage in similar activities I found that cancellation in this instance may provide a deterrent effect. I considered that this was not a significant factor and overall I placed little weight on this consideration.
…
(78) In view of Mr Pantoja Rodrigeuz’s criminal offence and the serious nature of the offence I gave great weight on the consideration that the Australian community would expect that Mr Pantoja Rodriguez’s visa to be cancelled and that he be removed from Australia. It is my conclusion that the nature of Mr Pantoja Rodrigeuz’s criminal conduct would be of such concern to the Australia community that he should not be allowed to remain in Australia.
Best interests of the Children
(79) I gave primary consideration to the best interests of the children. Mr Pantoja Rodriguez has two sons Anthony aged 16 years and Patrick aged 13 years. Both boys were born in Australia.
(80) When making my decision to cancel Mr Pantoja Rodriguez’s visa I also gave consideration to the fact that his sons are Australian citizens and the effect Mr Pantoja Rodriguez’s removal from Australia will have on his sons.
…
(83) I accept that my decision to cancel the visa of Mr Pantoja Rodriguez will have a significant effect on his two children.
Other considerations
(84) In reaching my decision I also took into account other considerations and in particular the extent of disruption that will be caused to Mr Pantoja Rodriguez and members of his family.
(85) I accept that Mr Pantoja Rodriguez had contributed to the Australian community by working hard and earning a position of trust with his employer.
(86) I considered that Mr Pantoja Rodriguez will suffer emotional and financial hardship by being removed from Australia. A significant emotional hardship being his inability to establish a closer relationship with his sons in the Australian community…”
3. A consequence of the cancellation of the Applicant’s visa is that he is liable to deportation from Australia to Peru.
the issues
4. The issues for determination in this application are whether:
·The Applicant fails to pass the character test by reason of his having a substantial criminal record within the meaning of section 501(7)(c) of the Act having been sentenced to a term of imprisonment of 12 months or more.
·The discretion available to the Tribunal to cancel the Applicant’s visa should or should not be exercised in his favour.
the hearing
5. At the hearing of this application the Applicant was self represented but did have the assistance of Ms Ines Flores, a migration agent of TJM Immigration Services. The Respondent was represented by Mr T Eteuati, Solicitor of Clayton Utz Lawyers.
6. The documents lodged by the Respondent with the Tribunal and provided to the Applicant pursuant to section 501G of the Act were admitted into evidence and marked G1-G8. Documents tendered by the Applicant as Exhibits comprise the following:
Exhibit A Unsigned witness statement of Jesus Pantoja dated 26 May 2006
Exhibit B Unsigned witness statement of Lorena Vasquez dated 26 May 2006
Exhibit C Psychiatric Report dated 25 May 2004
Exhibit D Psychiatric Assessment Summary dated 16 March 2005
Exhibit E Statement of Applicant dated 20 June 2006
7. The Applicant gave evidence and was cross-examined with the assistance of a Spanish interpreter. The Applicant’s brother, Mr Jesus Pantoja, also gave evidence upon which he was cross-examined.
chronology of significant events
8. The Respondent provided to the Tribunal a chronology of the events significant to a decision in this application. The Applicant did not take issue with any of the facts set forth in the chronology. Subject to a number of minor variations such chronology is as follows:
1962, 19 November Applicant born in Lima, Peru
1985, 14 June Applicant first enters Australia on a visitor visa valid to 12 August 1985.
1989Applicant marries
1989, June 8Applicant applies for residence status on basis of his marriage to an Australian citizen.
1990, 6 February Applicant granted permanent residence.
1990, 17 April Applicant granted resident return visa.
1991Applicant travels to Peru with wife and Anthony
1992Son Patrick born
1992, 23 October Applicant murders his wife
1992, 14 November Applicant arrested and detained in relation to the murder
1994, 22 April Applicant charged in prison with damaged property and cautioned.
1994, 1 September Applicant’s visa deemed to be transitional (permanent) visa
1994, 2 December Applicant convicted of murder and sentenced to 18 years imprisonment.
1996, 6 February Conviction quashed by Supreme Court and re-trial ordered.
1997, 5 March Applicant convicted of murder and sentenced to 18 years imprisonment.
1998, 5 November Conviction upheld by Court of Criminal Appea.l
2003, 10 April Applicant charged in prison with possess prohibited goods.
2006, 20 April Respondent cancels Applicant’s visa
2006, 27 April Applicant notified of visa cancellation
2006, 3 MayApplicant applies for review of decision by Administrative Appeals Tribunal.
2006, 31 May Applicant refused release from prison on parole pending determination of Administrative Appeals Tribunal application.
relevant legislation and ministerial direction
9. 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 that 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
…”
10. If the Tribunal is satisfied that the Applicant does not pass the character test then the discretion provided 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.
11. Paragraph 2 of the Ministerial Direction 21 as here relevant states:
“Protection of the Australian Community
2.4 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 Australia 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 especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The 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
2.6 It is the Governments view that the following are examples of offences considered by the Government to be very serious:
…
(f) Murder, manslaughter, assault or any other form of violence against persons;
…
(n)Any other crimes involving violence or the threat of violence.
Such crimes are of special concern to the welfare and safety of the Australian community.
…”
12. 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 offenders 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;
(b)The repugnance of the crime;
(c)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;
(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
2.11 General 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
2.12 The 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.
The Best Interests of the Child
2.13 This consideration only applies if the child is or would be under the age of 18 years when the decision comes into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17
…
2.17 When considering the issue of visa refusal or cancellation other matters, although not primary considerations, may be relevant. It is the Government’s view 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 may include:
(a)The extent of disruption to the non-citizen’s family, business and other ties to the Australian community
…
(c)The degree of hardship which would be caused to immediate family members lawfully resident in Australia including Australian citizen (including whether the immediate family members are able to travel overseas to visit the non-citizen); the nature of the relationship between the non-citizen and the immediate family members; whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere
(d)Family composition of the non-citizen’s family both in Australia and overseas
…
(h)Any evidence of rehabilitation and any recent good conduct
…”
the situation generally
13. The Applicant was born in Lima, Peru on 19 November 1962. He is a citizen of that country. He is one of a family of seven brothers and one sister; three of the brothers living in Australia. Two of the latter are married with children.
14. The Applicant’s arrival in Australia at the age of 23 years was preceded by that of two of his brothers and his wife whom he had known when living in Peru. She was a relative, the niece of his brother Elmer’s wife.
15. He obtained employment following his arrival in Australia and at the time of the committal of his offence was supervisor of a cleaning agency that employed 120 people on a part time basis. He married his deceased wife in 1989 of which marriage there were born two sons Anthony and Patrick.
16. The Applicant’s wife was killed in 1992. The offence for which the Applicant was convicted was his first and only offence. He continues to maintain his innocence and has done so since 1992. He was convicted of murder at first instance and again upon a re-trial in 1998. He states that he now accepts the decision of the courts.
17. Whilst serving his sentence, the Applicant has participated in externally based education and work programs with the aim of gaining skills for his eventual release.
criminal history of the applicant including sentencing comments
18. On 5 March 1997, the Applicant was convicted of murdering his wife and sentenced to a term of imprisonment of 18 years with a non-parole period of 13 years and six months. On 5 November 1998, an application for leave to appeal against the conviction was refused and the appeal dismissed.
19. In the course of his reasons for sentence, the sentencing judge described the events that led to the death of the Applicant’s wife. He said:
“…On the night of 23 October 1992, the prisoner was working in a building in Walker Street, North Sydney during the early hours of that day as the jury found, the prisoner left work and travelled home, killed the deceased and returned to work…The death of the deceased resulted from blunt trauma injuries to the face and head and from the effects of a ligature around the neck. Blood marks at the house showed that she had been beaten and severely injured in one part of the house, then dragged across the hall and strung up by the neck to the door knob by means of a nylon cord. The prisoner referred to the cord when he told the police that the deceased had committed suicide. The use of the cord and the prisoner’s explanation to the police claiming the suicide demonstrate a systematic approach to a pre-meditated killing. At the time of the murder, the prisoner pushed the side screen door of the house off its runners. That was the action of a cool man calculated to make it look as though a stranger had tried to get into the house that way…I do not think that this was a hot blooded killing following upon an argument that got out of control. I am satisfied beyond reasonable doubt that the prisoner left work with the intention of killing the deceased…I think that in the respects that I have mentioned the prisoner has commenced the process of rehabilitation but that process can not be taken very far unless he comes to terms with his criminality. At the moment he is denying his guilt and there is no evidence of remorse…”
character
20. 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 period of his sentence alone is sufficient to make this finding. Before turning attention to a consideration of the discretionary factors overall, it is desirable to pay specific attention to issues of recidivism, the best interest of the children and of the hardship that may be experienced by the Applicant and members of his family if the visa be refused.
recidivism
21. The Applicant’s brothers living in Australia speak well of him. He is according to Amancio Pantoja “dependable, reliable and I would not doubt of his honest (sic) and friendship”. A fellow worker in the cleaning industry says that the Applicant is “a man of great integrity, exceptional, diligent and hard worker”.
22. The assessment committee at Silverwater Detention Centre is of the opinion that the Applicant has a low risk of re-offending even though he continues to deny his offence. In a psychological report of 18 October 2000 it is stated that on assessment the Applicant has “only an 11.7% chance of re-offending for one year period following release”. In a further report of the 16 March 2005 it is stated:
“Given that Mr Pantoja has already served over 12 years in custody his continued declaration of his innocence appears unlikely to change. He presents as having limited additional risk factors which could be targeted for psychological intervention. His application for C3 classification is tentatively supported as beneficial in allowing his the opportunity to:
·Reintegrating himself into the community after a long period of incarceration
·Seek and maintain employment to establish financial security
·Have additional contact through day/weekend leave with his children”
best interests of the children
23. The Applicant said in a letter to the Respondent of 13 December 2005 that
“The most important thing to me is to be reunited with my two children. I have missed the important years of their childhood and would like to be given the chance to once again become a father to them as they have lost their mother and effectively also their father for the last 14 years. If I am deported this will greatly effect my children who have recently expressed their desire to be with me and make up for lost time. I am asking for your deepest consideration under humanitarian grounds to take into account the best interests of my children when making your decision. If I am deported, it will mean that my children will once again be without their father in their adolescent years.”
24. The children have been living with their late mother’s sister since the Applicant’s arrest. They have been supported financially so far as he has been able to do so by their father who at the time of his arrest or near there to, divested himself of all of his property in aid of their welfare. They have each received extensive counselling since that time.
25. Father Michael Walsh, parish priest of St Vincent’s Parish Ashfield writes:
“I met Mr Pantoja when I was Catholic chaplain at Long Bay Correctional Centre. I was very impressed with the character of Mr Pantoja. He is a dedicated Catholic and attended mass each week in the prison chapel. Here he was most willing to participate and assist in the ceremony. However, it was in the day to day life of the prison that Max showed his true qualities; inner strength, courage, determination and a deep sense of the dignity of all. He was one of the few men who were admired by both fellow prisoners and staff. It is not easy to be a good man in prison.
I know that much of Max’s strength came from his faith and also from his family. Over so many years he was resolute in his commitment to serve his time as well as possible and then to be reunited with his children.
Now that he comes to the end of this long period in prison, he has the opportunity to serve his country and especially his children with much devotion. I am confident that he could do this in a way that will be of inestimable value for his children. After all these years they have the prospect of having a father who is truly present to them. Their future stability would I believe be jeopardised if their father was deported. Please do not deprive them of this opportunity of having a father who loves them…”
26. The Applicant’s younger brother Mr Jesus Pantoja speaks highly of his brother’s character, of his work in Australia and contributions to the welfare of his mother in Peru. He says that the Applicant “is a smart, intelligent and caring man who is desperate to reunite with his kids and make up for the time he missed”. Ms Pilar Tejada, a friend, has visited the Applicant in gaol with her younger sister. She knew the Applicant and his deceased wife. She says:
“It pains me greatly as a mother that the father of Anthony and Patrick whom [sic] are currently at a crucial stage of their lives experiencing both physical and emotional metamorphosis cannot be with them. Especially when these two boys need the support, guidance and respect of their father in order to relate to them at this pivotal phase of their lives.
I believe that Maximo has already paid an extraordinary punishment and has unwillingly had to sacrifice what he cherishes – his two sons and his wife. This man should be granted a second chance to live and a chance to gain the time he lost with his sons. Maximo should be granted his autonomy again as it was stolen back in 1992.”
27. Ms Lorena Varquez speaks to a like effect as does another friend Mr Juan Carlos Bergos.
28. The Applicant himself says that he wants to be reunited with his sons. He says:
“I love my children and they are the most important people for me. Do not take my right to give my love and time to my children by sending me away from where I will not be able to have the contact if I can have if I am here.
My children deserve the best and there is so much future ahead of them I want to be part of that and enjoy their companion anytime not just during the time they visit me in gaol.
Being boys they need their father Anthony is 16 and Patrick is 13. Please do not punish them further. They are innocent victims in all of this.
Anthony and I have often spoke of the possibility of living together share our time. He is currently living with his aunt and he needs a man who can guide him and support him and who better than his own father who only desires to see his children happy and contended.
…”
hardship to applicant and members of his family
29. The Applicant maintains that he did not murder his wife. The court, Judge and jury, have determined otherwise. As has the Court of Criminal Appeal. This fact is to be accepted by the Tribunal. The Applicant has been in detention for a period in excess of 14 years.
30. The Applicant said in a letter to the Respondent under date 13 December 2006:
“…the most important thing to me is to be reunited with my two children. I have missed the important years of their childhood and would like to be given the chance to once again become a father to them as they have lost their mother and effectively also their father for the last 14 years. If I am deported this will greatly effect my children who have recently expressed their desire to be with me and make up for lost time. I am asking for your deepest consideration under humanitarian grounds to take into account the best interests of my children when making your decision. If I am deported, it will mean that my children will once again be without their father in their adolescent years. I attest that it is the view of all bodies relating to corrective services that I am of good character and have attached copies of reports for your perusal. It is my submission that I have fully addressed any issues that the department deemed as necessary during my incarceration and this does not in any way amount to grounds for deportation…
It is my submission that this is an isolated offence and as such there is no such criminal history. I have enrolled in an extensive amount of courses during my incarceration and I hereby provide you with authority to assess my educational records as evidence. I submit that I am now 43 years of age and there is no possibility of future criminal conduct as recognised by all psychologists, drug and alcohol counsellors and parole officers that I have seen.
I submit that the Department should view my relationship with my family and my work conduct during my incarceration positively…I have always had responsible work positions whilst in gaol and am presently employed in the food services division of Silverwater Correctional Centre…I submit that there is no risk of engaging in any adverse conduct in the future.
It is also my submission that any application to have me removed would bring about family hardship and Government dependence and unnecessary and advertent to society”.
31. The manager regional food services at Silverwater Correctional Centre and the senior overseer say that they have known the Applicant for nearly two years. They have found him “…to have an excellent work ethic always willing and shares responsibility. Maximo is presently employed on stores and despatch duties which carries a high level of trust and a lower level of supervision. To date Maximo has not breached that trust…I have found him to be pleasant and honest in his dealings with myself and would go as far as to say that this statement is shared by fellow overseers”.
32. His “inmate work performance record” states “Max understands and practices hygiene principals as per the book. Has an excellent work ethic, takes pride in his work and has a pleasant demeanour in the work place…Works in demanding area in food preparation always meets deadlines shows initiative and responsibility”.
33. A senior officer at the Metropolitan Medical Transient Centre states:
“In his time here he has given generously his support to the officers meal club voluntarily by maintaining meticulous hygiene standards whilst combining it with his role in the reception room. In his paid position he has been outstanding. He is well respected by all officers including the commissioned ranks. He has never had an absence form his workplace maintaining long work hours seven days a week…
He has pleasant disposition which has benefited the officers in reception with his ability to work with them and other inmates. He is not intimidated by other inmates.
He has displayed loyalty and trust with a dedicated work ethic which is not easily filled. He is well known among the transport officers in addition for his willingness to give a hand and he has never sought to benefit personally from his position.
He is computer literate with ongoing educational courses and continues to improve his language skills. For a non-English speaking background he has an excellent memory. Max has been a most dedicated and diligent worker over these many years and all staff at the MMTC will notice his absence but also will wish him well for his future development”.
34. Again the senior collection officer in a report to the Serious Offender Review committee says:
“…it is strongly recommended that inmate Pantoja remain as C1 classification and placement in John Moroney Correctional Centre 2. His invaluable service and dedication as the main reception room worker cannot be dispensed with. He has always been reliable in all aspects as a “trustworthy” worker. There are no known derogatory report to dispute this. His performance is rated “exceptionally outstanding”. His general conduct and behaviour are very satisfactory.
His assistance and service to staff and inmates in the reception room are worth commending. It is understandable that Pantoja will have to persue his personal aspirations and goal pathways. Therefore there is no objection from this section for his future placement elsewhere to obtain his objectives”.
35. If allowed to remain in Australia the Applicant plans to reside with his children in Sydney, if they agree. Alternatively he will live with one of his brothers. He plans to recommence work in the cleaning business. If he is deported to Peru he plans to reconnect with his family there, being his mother, sister and brother. His mother visited Australia in 1999, staying for a year and visited him whilst he was in gaol. He continues to telephone her at least monthly.
36. The Applicant’s brother Mr Jesus Pantoja says “to me Maximo is smart, intelligent and a caring man, a good brother father son and human being who is desperate to be reunited with his kids and make up for lost time. If he is deported he and his children will be punished and I will see my brother go away and not see him as often as I do now. He is for now a source of support and encouragement. I can talk to him and seek his advice. I love my brother. Please do not separate me from him and do not separate him from his children who give him meaning to his life”.
37. The Applicant says that although he is “not guilty” of his wife’s murder:
“I cannot dwell on the past but look to the future and with that in mind I prepared myself during the time I was incarcerated I learned new skills, I worked hard. The work references are testimony of my attitude and desire to better myself so when I was released I could provide for my children.
If I am deported to Peru I will lose every chance to reconnect with my sons and to create a new life for the three of us. So many things I want to share with them, things that are often taken for granted…”
38. Further he is apprehensive about returning to Peru saying “if I go back to Peru I fear for my safety and my life as all my late wife’s family live there and they have made threats. If this happened my children could have effectively lost both their mother and father”.
39. It is clearly apparent from the evidence before the Tribunal that the Applicant is highly regarded not only by those who have been in contact with him whilst he has been in prison but by his family in Australia. If his visa should be cancelled and he be deported to Peru he would experience considerable hardship not least of which would be his being deprived of a meaningful contact with his sons. The Tribunal accepts that the Applicant’s intent to involve himself with his sons and to be of assistance to them in an emotional as well as a physical sense is genuine. The Tribunal also accepts that the Applicant has endeavoured to better himself whilst in prison and to maintain the respect of officers.
consideration of discretionary factors – the parties submissions and decision
40. As has been earlier noted there is no issue in this application that the Applicant is not of good character within the meaning of the Act.
41. The Applicant does, however, maintain that apart from the tragic event occurring in 1992 he has not committed any other offence. He has been incarcerated for in excess of 14 years and is now able to seek release on parole. He states that he will not again engage in anti-social conduct and there is no risk of recidivism. As to the expectations of the Australian community, he says that being no risk to it and having served his period of imprisonment, that the Australian community realising the responsibility he has to his two sons and his desire to do his best for them would not expect that his visa would be cancelled.
42. Clearly he maintains it is in the best interest of the two boys for him to remain in Australia and do all he can as a father to assist them in their life passage. He further maintains a close relationship with the two sons and with his brothers who live in Australia. He has no desire to remove the children from the protective care of their aunt but says that he would be available to care for them if they so desire.
43. On his behalf, attention is drawn to the positive way in which he has acquired skills, attended courses and obtained qualifications whilst in gaol and his intent to re-enter the workforce on release. More specifically with reference to the children if he be deported the children will stay in Australia this being the country where they were born. They speak only English and it would be difficult for them to settle in Peru. The Applicant would then lose all opportunity to be close to them, to get to know them and to “heal the past”. It was submitted on his behalf that the children should not be punished for the mistakes of their parents, the loss of their mother and if the Applicant is deported it will effectively be the loss of their father. This will be detrimental to them and any possibility to establish a relationship between father and sons will be lost.
44. Finally it is said the Applicant has been living in Australia for a period of over 20 years and has developed strong ties with the Australia community. Furthermore, he has three brothers living in Australia who are Australian citizens.
45. On behalf of the Respondent it is submitted that the offence of murder for which the Applicant was convicted and sentenced is very serious. The nature of the injuries inflicted upon the wife were grave and reflect adversely upon the Applicant. Whilst admitting that the risk of recidivism is low, attention is drawn to the risk nevertheless, this more particularly on account of the Applicant denying his guilt. The submissions of the Respondent in this regard warrant due consideration.
46. I do not consider that deterrence is a significant factor in this application. The offence committed by the Applicant was singular, directed at a particular person and is not likely to be repeated. Nor would the cancellation of a visa per se be likely to prevent a person committing such a crime. The expectations of the Australian community are difficult to assess. It is necessary to consider how a person living in the community being fully informed of the facts would react to the question of cancellation of the visa. In the absence of consideration being given to the two sons, members of the community may well be inclined to favour cancellation of the visa. However, as the best interests of the children is one of the three matters for major consideration it is necessary to consider that factor and measure it against the other factors, the serious nature of the conduct, the likelihood of recidivism and general deterrence as well as the expectations of the community. There can be little doubt that it is in the best interests of the children for their father to remain in Australia. It is true as was submitted on behalf of the Respondent that the present caretaker, the aunty of the children, was not called to give evidence. But she is the sister of the deceased and there has been little contact between the Applicant and the sister since his conviction. Again neither of the two sons was called. Anthony, the elder of the two is presently preparing to sit for his Higher School Certificate and it was said by the Applicant that this factor alone was sufficient to preclude his applying his mind to the issue before the Tribunal. The position taken by the Applicant reflects his interest in and concern for the welfare of his son. He did not place his own interests ahead of those of his son. The younger of the two boys Patrick has not been, as yet, made fully aware of his fathers situation and would not have been able to express a meaningful opinion.
47. However, as I have said if the children are deprived of the presence of their father in Australia they will undoubtedly experience further emotional problems which may warrant at the least additional counselling.
48. It is necessary for the Tribunal to consider the criminal conduct of the Applicant even be it an event that occurred 14 years ago. There has been nothing of any significance, of an adverse nature, recorded against the Applicant since that time. The likelihood of recidivism is low even be it it cannot be described as far fetched or fanciful. There is a low risk and there is a chance that the Applicant could engage in anti-social conduct. However, in the opinion of the Tribunal it is unlikely. Again the deterrence factor is not of great significance. The expectations of the community are worthy of consideration where a person such as the Applicant seeks to remain in Australia and become absorbed into the Australian community. By the nature of his crime the Applicant may well have placed himself among the class of persons whom Australia does not wish to accept for entry. (See Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3ALN N129 at N132). However, even be it the Applicant according to the sentencing judge, acted systematically and with pre-meditation in carrying out the murder his conduct and behaviour since that time bear witness to his character in a general sense not being consistent with his conduct at that time.
49. There is evidence that the brothers of the Applicant will experience some hardship and distress if the Applicant should be deprived of his visa. They have consistently visited him whilst he has been in gaol and have arranged for the two boys to visit their father in gaol. They have placed before the Tribunal evidence as to their assessment of their brother and this is to be seen in a favourable light.
50. It is true that the Applicant’s mother and other close members of his family reside in Peru and if he should return to that country he may be able to resume his life in Lima. However, he attests to his late wife’s relatives in Peru being antagonistic towards him and having made threats against his life. Even be it such threats do not mature into action it is clear that his relationship with such relatives would be strained to say the least.
51. The Tribunal is well aware of the gravity of the offence committed by the Applicant. It is well aware of the trauma experienced by the two sons and other members of the family living in Australia more particularly those who were close to his deceased wife. The Tribunal is also conscious of the need to protect the Australian community and bear in mind expectations of that community. However, in this application the Tribunal is minded of the protestations made by the Applicant and of the opinions expressed by custodial officers and others as to his standing and dedication to the work that is asked of him and of his expressed intent to re-engage in a meaningful sense with society if he should be allowed to remain in Australia.
52. The Tribunal is also conscious of the fact that even be it he was convicted and sentenced he nevertheless sought to make appropriate provision for his sons to transfer the title in his home to his brothers as well as other assets so that they could look after the children whilst he was serving his term of imprisonment. He did not turn his back on his responsibility to them. The Tribunal is of the opinion, having considered all of the relevant factors that the interests of the two boys overrides the other primary considerations. The other factors including the hardship to the Applicant and his brothers also assist in a decision being made in his favour.
53. If the Applicant were to have his visa cancelled and he be deported the hardship that he would experience would be significant. The hardship the sons would experience would be the more so. I am satisfied that members of the Applicant’s family in Australia are genuine in their concern for his welfare. It is sincerely held by them and is a factor to be taken into account in arriving at a preferable decision. The Tribunal cannot act in an inhumane manner and cannot act without compassion. The decision about to be made must take into account these factors as it does the primary considerations earlier discussed. As has already been indicated the assessment made by the Tribunal as to the Applicant’s likelihood of re-offending is that it is most unlikely. It is a possibility. The Australian community is to be protected against this possibility. Parole conditions and guidance given to him by his brothers should guard against this.
54. Being mindful of all of the matters set forth in these reasons for decision and weighing the primary considerations against the other considerations and with some reluctance having in mind the nature of the offence that he committed, the Tribunal is of the view that the protection of the Australian community and the alleged expectations of that community do not override the other considerations especially the best interests of the children.
55. For the above reasons the decision under review is set aside.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, AM Q.C, Deputy President
Signed: Associate
Date of Hearing 20 and 26 June 2006
Date of Decision 12 July 2006
Representative for the Applicant Mr M Rodriguez,
Self-Represented
Solicitor for the Respondent Mr T Eteuati,
Clayton Utz Lawyers
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