Rountree and Minister for Immigration and Citizenship
[2007] AATA 1615
•1 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1615
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2173
GENERAL ADMINISTRATIVE DIVISION )
Re Jonathon ROUNTREE
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date1 August 2007
PlaceSydney
DecisionThe decision under review is affirmed.
....................[sgd]..........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – applicant’s visa cancelled for failure to pass character test – applicant convicted of a number of offences including supplying a prohibited drug in an indictable quantity – applicant had also accumulated a substantial criminal record prior to arriving in Australia – applicant found to have a particularly long and sustained criminal record, both in Australian and New Zealand – risk of recidivism found to exist – best interests of the child considered – found to be the strongest factor supporting the applicant’s case, however, the other matters considered outweighed the children’s best interests – decision under review affirmed.
RELEVANT ACT/S:
Migration Act 1958: ss 34(2), 499(1), 499(2), 499(2A), 500(6B), 500(6H), 500(6J) 501, 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)
Direction 21
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Al-Kateb v Godwin (2004) 219 CLR 562
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
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REASONS FOR DECISION
1 August 2007
Professor GD Walker, Deputy President
Summary
1. The applicant, a New Zealand citizen, was sentenced to three years’ imprisonment in 2006 on charges including supplying a prohibited drug (not cannabis) in an indictable quantity. He had accumulated numerous other convictions since arriving in Australia in 1996.
2. On 23 May 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act). The applicant sought review of that decision on 25 May 2007 by application to this tribunal.
Issue
3. The issues in this application are:
(a)whether the applicant does not pass the character test in s 501(6)(a) because of his past and present criminal conduct within s 501(6)(c)(i), of the Act and, if so;
(b)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
4. At the hearing, the applicant was unrepresented and the respondent was represented by Mr Greg Johnson, solicitor, of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person via video link from Brisbane.
Relevant Law and Policy
5. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
6. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
7. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
8. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Basic facts
9. The applicant Mr Jonathon Rountree was born in New Zealand on 12 December 1954 and first arrived in Australia on 10 September 1996 at the age of 42 years, holding a New Zealand passport. He has not left Australia since. He was granted a special category visa class TY subclass 444 at the time of arrival but does not satisfy the requirements for an absorbed person visa under s 34(2) of the Act.
10. On 1 February 2007 the respondent notified the applicant of its intention to consider cancelling his visa under s 501(2) of the Act. After considering the applicant's response, the delegate took the decision to cancel the applicant’s visa on 23 May 2007.
11. The applicant applied to this tribunal for review of that decision but subsequently withdrew his application. Shortly thereafter he gave notice of his intention to seek reinstatement of the application. The application for reinstatement was neither supported nor opposed by the respondent and was heard at the commencement of the hearing in Sydney of the substantive application on 16 July 2007.
12. He sought reinstatement on the ground that he had gained the impression from an officer of the respondent at an interview on 22 June 2007 that if he were to succeed in the application for review of the decision to cancel his visa, Queensland police might pursue certain matters pending against him in that State. He had thereupon hastily withdrawn his application, but on reflection decided to retract the decision as a matter of “principle alone”.
13. While I do not accept that a department officer intentionally or objectively made such an assertion, I accept that Mr Rountree gained the impression that he faced a choice of that nature. In the circumstances I did not consider that it would be fair to deny him the opportunity to make his case for review of the delegate’s decision. As everyone who would be required for the conduct of the full review application was already present at the hearing, there would be little or no additional expense or inconvenience occasioned by proceeding with it.
14. At the time of the hearing Mr Rountree was in Queensland awaiting trial on the charges already mentioned and participated in the proceedings by way of a video link.
15. Before arriving in Australia, the applicant accumulated a substantial criminal record, which included drug offences, in New Zealand. In all he was sentenced to over 11 years imprisonment in that country, not including sentences that were to be served concurrently (G pp139-153).
16. On 6 June 2006, the applicant was convicted at Coffs Harbour District Court of supplying a prohibited drug in an indictable quantity (not cannabis) and was sentenced to three years’ imprisonment with a non-parole period of 15 months. On the same occasion he was sentenced to six months imprisonment, to be served concurrently, on two counts of possessing a prohibited drug.
17. His lengthy New South Wales criminal history commences on 11 November 1997 and comprises a wide range of sentences, penalties and probation orders. Some salient features of it may be noted, however.
18. On three separate occasions he has been sentenced to terms of imprisonment of 12 months or more: first on 9 July 2001, then on 6 June 2006, then on 26 June 2006. The offences of which he has been convicted include the following:
§Assault occasioning actual bodily harm;
§Common assault;
§Contravening an apprehended domestic violence order;
§Breaking and entering;
§Maliciously destroying or damaging property;
§Stealing a motor car or motor vehicle;
§Driving while disqualified from holding a license;
§Driving a vehicle recklessly, furiously or in a manner dangerous to the public;
§Possessing a prohibited drug.
19. He received custodial sentences for contravening apprehended domestic violence orders on four separate occasions between July 1998 and November 1999.
20. He received custodial sentences for assault occasioning actual bodily harm or common assault on three separate occasions between July 1998 and July 2001.
21. Nine of his more serious custodial sentences were confirmed on appeal and none appears to have been reversed or reduced. As regards traffic offences, he was declared an habitual offender on 26 June 2006 and disqualified from holding a license until July 2024.
22. Since he arrived in Australia 11 years ago, the respondent submitted, there has been no 12-month period in which he has been free of offences.
The applicant’s evidence
23. At the hearing, Mr Rountree tendered a one-page statement (Exhibit A2) containing the main points on which he intended to rely in his evidence in chief. He explained that while he was at the Brisbane City Watchhouse he did not have access to writing materials. Following a request by my associate Ms Wallace, he was supplied with a pen and paper, but had less than half an hour in which to prepare a statement for transmission to the tribunal and the respondent before being moved to the Arthur Gorrie Correctional Centre.
24. Consequently, his statement had been rather brief. It should be noted, however, that at the telephone directions hearing on 19 June 2007, I had stressed to Mr Rountree the importance of ensuring that all his witness statements were filed and served on time, and at the very latest in time to allow two clear business days to elapse before the first day set down for the hearing, otherwise the tribunal could not have regard to any document or information that he might seek to present in support of his case, pursuant to ss 500(6H) and (6J) of the Act. I also pointed out that the statement or statements could be handwritten and need not be in any particular form; what was essential was that he gave notice of the matters on which he intended to rely. The applicant thus had ample time to attend to the matter.
25. At the hearing I pointed out to the applicant, however, that he was free to rely on any information that he had previously supplied to the respondent, such as earlier written statements in the G documents, without infringing ss 500(6H) or (6J).
26. In his statement (Exhibit A2) the applicant said that he had not divulged his New Zealand criminal history when he arrived in Australia in 1996 because he wanted to start “a more productive and beneficial life” and had thought that if he made full disclosure he “would no doubt have been perceived as mentally deficient … This, then, does not imply that I was lying to the delegate of the minister in previous submissions”.
27. The applicant submitted that there were compassionate claims based on the welfare of his de facto’s three children, aged between seven and 12 years, with whom he had been throughout their formative years.
28. He maintained that he is no threat to the Australian community at large. It was unjust that he should be considered in a way more appropriate to anti-terrorist law. He considered it “an insult to any God-fearing man let alone a Christian such as myself”.
29. He said that the record at Glen Innes Correctional Centre would show that he had applied for a C3 classification, which would have permitted him to take weekend and day leave. Pursuant to that application, he had been assessed by a psychiatrist, who had concluded that he did not present a threat to the public. The report was not in the G documents and he did not know how to obtain it, particularly as he had repeatedly been transferred from one correctional centre to another.
30. In cross-examination he said that when he left New Zealand he was working as a painter and decorator. He had not been living with his family, which was dysfunctional. He has little contact with them, apart from his brother Phillip. In Australia he has three sisters, the one with whom he has regular contact living in Melbourne. He has never been married and has no children.
31. The applicant said he had come to Australia to work. In New Zealand he had a painting and decorating business, but the introduction of goods and services tax had placed small businesses such as his under considerable pressure. After he had come to Australia the introduction of GST here had somewhat affected his business, but he had pressed on. (He had told the psychiatrist Dr Delaforce, however, that he had come to Australia in 1996 because of a relationship with an Australian woman: G p129.)
32. His first job in Australia was sub-contract work at Kirribilli House, for about four and a half months. That was specialised work, which led to other work, mainly in the affluent areas of Sydney. He worked first for Michael Peterson and later for Sydney Professionals after the former had run out of work. He remained with Sydney Professionals for a year, but left when the company lost the contract on a major building complex because it failed to meet the specified requirements for the task. After that he had been self-employed, working pursuant to the then prescribed payment system. That work had not been constant or permanent.
33. If released, he would have a job to go to with a Mr JR Smith who operates a business called School of Happiness at Tenterfield. Mr Smith wrote that he would employ the applicant as a painter and decorator to renovate one of the houses owned by the business, and also in day-to-day operations on one of their rural properties at Tenterfield (G p120). Mr Smith, the applicant said, is quite wealthy and owns a substantial property at Bellingen. He is seeking Heritage listing for one of his properties and had kept in touch with the applicant who he knew to be a specialist painter.
34. The applicant said he had accumulated his New Zealand criminal record because he was quite young and was battling against heroin, pills, marijuana and alcohol. He had sought help in New Zealand and Australia, and his criminal activity had halted, with gaps of two years to five years. In Australia he had become a reformed alcoholic and had taken an anger management course. His only assaults related to domestic disputes. He admitted that as he was 42 when he left New Zealand, he could not be regarded as having been a youthful offender, but said that his more serious offences were committed as a youth.
35. He had contravened apprehended domestic violence orders because when he first came to Australia he was in a relationship that gave rise to domestic disputes. He was an alcoholic and she wanted him to renounce it. He had sought help but could not overcome the problem at the time. As his partner also had alcohol problems, the relationship had never worked out, but it lasted for four and a half years until about 2001.
36. It was true that he had fled the scene after being stopped by police in connection with the drug offences in 2003. After that, he had used methyl amphetamine as a result of the relationship he was in with his current de facto, who had similar problems. He had worked on cattle stations in the Coonamble area in an attempt to sort himself out.
37. The charges pending against him in Queensland had arisen during the same period. He was trying to prevent his de facto, Andre Messina, from returning to heroin, and partly succeeded. He was concerned about the future of her children and wanted to wean her away from heroin. For that purpose he believed he “had to keep her anesthetised”. In the end he had succeeded in making her more receptive to help and she had agreed to enter rehabilitation.
38. The Queensland charges relate to possessing and supplying ecstasy and trafficking in LSD. The drugs were found in a house that was in his name, but he said the drugs were not his and the police knew it. He had “made a deal” with the Queensland police in order to protect Ms Messina and her three children, whom he did not want to enter the care of the Department of Community Services. He had offered to take responsibility for the drug charges on condition that Ms Messina would not be charged with any offences.
39. The drugs found in his car in 2003 were for personal use, although half belonged to the person who telephoned him on his mobile phone after he had been stopped.
40. He had been due to serve a 14-month non-parole period but was given extra time because of his attempted escape and his failing of a drug test in December 2006.
41. From time to time he suffers from depression for which he needs medication. At Glen Innes he had repeatedly asked to see a psychiatrist who could prescribe it but was refused. At Grafton he had immediately been permitted to see a psychiatrist, who prescribed the required medication. As a result he was well from then on. He had taken drugs in late 2006 because he needed something to lift him out of depression, as he did not want to run the risk of an escalation of the condition, even though he was close to the end of his sentence.
42. His Queensland charges come up for mention on 20 July 2007 and he will plead not guilty to trafficking, but has not yet decided finally. He had failed to appear at a court hearing in New South Wales because he was in the Brisbane Watchhouse. The authorities had telephoned New South Wales to discuss his participation in a witness scheme, but he had rejected the opportunity because of what he saw as a possible danger to Ms Messina and the children.
43. He had completed seven of the 10 months of the Salvation Army rehabilitation program, but had returned to his first de facto when he thought he had recovered, but had not. He agreed he should not have done it, but pointed out that he had not been convicted of any alcohol offences since 2001, although he had been convicted on drug charges.
44. The relationship with Andre Messina dates from 2002 when she had sought his help after her marriage had broken down. As she is part Maori, she found it easier to talk to him than to others, and he tried to help her, but it was no use. He had tried to keep the relationship purely platonic for about 18 months because he thought he could help her more effectively on that basis.
45. As her mother had died of a heroin overdose, he wanted to help her to end the addiction. The drugs he obtained for her made her more receptive to the idea of rehabilitation.
46. She had custody of the children during alternate weeks at that time, but her ex-husband’s work as a construction contractor made it difficult for him to fulfil his obligations, and she had obtained full custody as a result.
47. She was becoming more responsible and he wanted her to spend more quality time with her children. As he succeeded in turning her around, he began to have deeper feelings for her. He would not consider himself married to her but thinks the relationship basically is like a marriage. They had shared the same home for three years before he had been arrested in 2003. She had moved with the children to Tenterfield to be close to him.
48. The children have regular telephone contact with their father and spent a week with him last Christmas. They do not, however, see him very much because he is in Queensland. The applicant began to have an influence on the children's lives after Ms Messina entered rehabilitation. He would take them to school, to sport and to Easter shows to give them some sense of balance, and to help them interact with their friends from school. To an extent he became a father figure and they would go out as a family when Ms Messina was out of rehabilitation. He had not taken them out since he was incarcerated in February 2003.
49. Asked about the sum of $930 found in his possession when he was arrested in 2003, he said that he had shown an Austrian visitor around Sydney over a period of two or three days and had invited him to spend some time at his motel. Subsequently, he had driven the visitor to Sydney airport before he departed for Queensland. The Austrian had given him $650 in appreciation for his hospitality (see G p128).
50. The applicant said that the balance of the $930 had been his own money that he was carrying for his travel expenses.
51. The sentencing judge considered that story to be “most unlikely” but made no finding on the goods in custody charge because the applicant had not been cross-examined on the point (G pp132-133). As Morgan J made no finding on the matter, I think it appropriate to give the applicant the benefit of the doubt on that point.
52. At the end of his oral evidence the applicant again stressed that he had not been planning to sell any drugs for profit. He had been carrying them for Andre’s benefit. He had purchased the ecstasy for her because it was less destructive than heroin.
The applicant’s submissions
53. In relation to the character test, the applicant submitted that his “first real conviction” was for the drug offences in 2003. He had committed them for the purpose of assisting a mother and her children. He had achieved his desired result, as she had become more receptive and had entered rehabilitation.
54. He had never been a drug dealer and had never profited from trafficking as the judge had said. He had entered an early plea of guilty to his own detriment. He had never sold or distributed drugs to young people.
55. His conduct as a prisoner had been exemplary and he had applied for a C3 classification to enable him to visit the family. He was assessed by a psychiatrist as suitable for reclassification to C3. He had been unable to obtain the records of the psychiatric examination because while he is permitted to write to government departments, he is forbidden to telephone them.
56. The offence detected by the urine test resulted from depression. The psychiatrist at Glen Innes knew about his problem but had not prescribed the necessary medication. Accordingly he could not be held responsible for that offence. At Grafton he had received the necessary medication and there was a report by Joanne Stapleton in relation to that aspect of his case.
57. He had served only 15 months of the three-year sentence and would not re-offend because conditions would be imposed on his probation. The delegate who made the decision to cancel his visa might have been unfamiliar with his case.
58. His relationship with Ms Messina had not been on an intimate basis for the first 18 months, but that was in her best interests because he thought a friendship basis was necessary to help her recovery. He had looked after the children, and not only on a sporadic basis, spending more time with them than their father. They would be affected if his visa were cancelled, as Andre’s letter (G pp117-118) indicated. Cancelling his visa would have more adverse effect on the children, especially Riley, than on him. They were the nearest thing he had to a family, and he was trying to help them to achieve a balance in life.
59. Now that he has a family for whom he is responsible, he does not present any risk of recidivism. As a Christian he has never held malice towards anyone and has never harmed any person, except for the two assaults.
Application of the Law and Findings of Fact
60. As was stated above, the first issue for me to decide is whether, pursuant to ss 501(6)(a) and 501(6)(c)(i), the applicant passes or fails the character test having regard to his substantial criminal record as defined in s 501(7) and his past and present general conduct (501(6)(c)(ii)). The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
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In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
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The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
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61. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
62. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
63. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
64. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
65. When the applicant was stopped by police in February 2006, his car was found to contain ecstasy, cocaine, methyl amphetamine, ketamine and cannabis leaf. The total amount of ecstasy, that is methylenedioxymethylamphetamine, amounted to 111.84 grams. The trafficable amount applicable to that drug is .75 grams and the indictable quantity 1.25 grams. A commercial quantity of that drug is 125 grams, and as Morgan J pointed out, the applicant was is possession of an amount only some 10 grams less than the commercial quantity applicable to that drug (G p125).
66. Her Honour specifically found that the applicant was in the business of drug dealing and that the offence was part of a planned criminal activity (G pp132, 133). Neither his drug addiction, nor that of Ms Messina, can be regarded as mitigating circumstances.
67. Especially when that conviction and sentence are taken in conjunction with the applicant's prior record and multiple custodial sentences, no conclusion is possible other than that he fails the character test pursuant to ss 501(6)(a) and 501(6)(c)(i).
68. I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
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69. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
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70. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
71. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
72. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The Direction, which is binding on this tribunal, states in paragraph 2.6(a) that the possession, distribution or commercial dealing in illicit drugs is to be regarded as very serious, as are “crimes involving violence or the threat of violence” (para 2.6(n)). In this case the applicant was convicted on 6 June 2006 of supplying a prohibited drug in an indictable quantity (not cannabis). The sentencing judge also considered that the offence amounted to a planned criminal activity.
73. The applicant maintained that he was carrying half of the ecstasy for delivery to Ms Messina, in an attempt, ultimately successful, to induce her to cease taking heroin and accept drug rehabilitation. While that may be true as to part of the cargo he was carrying, it falls far short of explaining the large quantity and wide variety of prohibited substances found in his car. Nor does it account for the six telephone calls received on his mobile telephone while police were searching his car. One of them could well have been from Ms Messina, but the other five are more likely to have been from customers or suppliers. One caller in particular discussed how he would pay for this delivery and for the previous Friday’s delivery.
74. In view of the quantity of drugs involved, the way they were packaged, and the telephone calls received, the sentencing judge found that the only conclusion the court could reach was that he was in the business of supplying drugs: “I can make no other finding than that he was in the business having regard to the drugs, the amount of drugs, the way it was packaged, the telephone calls which were received and I simply do not accept his account …” (G p132).
75. The applicant contended that the three-year sentence was his “first real conviction”, but on several prior separate occasions he had been sentenced to custodial terms of 12 months, and had received several other shorter sentences of imprisonment for breaches of apprehended violence orders. The Act treats a 12-month sentence as substantial (s 501(7)(c)).
76. He claimed he has never sold or distributed drugs to young people and indeed has never been a drug dealer or profited from drug trafficking. While it may be that he has never directly sold to youthful customers, I am bound to accept Morgan J’s finding that he was in the business of supplying drugs, and even if I were not so bound I would reach the same conclusion. The applicant’s criminal conduct can only be viewed as very serious.
77. The next issue for the tribunal to consider is the risk of recidivism. Mr Johnson submitted on behalf of the respondent that there is a considerable risk of recidivism. Factors relevant to that include the length of the applicant’s criminal record. He was first convicted of burglary in March 1973 in New Zealand at the age of 19 and developed a long criminal history in New Zealand. He was convicted of offences only 14 months after arriving in Australia and has continued to do so. His claim to have been a model prisoner is contradicted by his being sentenced to an additional term of imprisonment during his most recent incarceration.
78. Other factors, Mr Johnson said, included his previous failure to complete the Salvation Army Bridge Course and his recurrent drug use, as illustrated by his failed urine test in December 2006. There was no period of time in Australia where he could demonstrate rehabilitation. He has spent a significant portion of his time in Australia in jail or in detention and is currently being held on further charges in Queensland which, at this stage, are not proven. Overall, the evidence showed that there was a medium risk that the applicant would re-offend.
79. The applicant has made some progress towards rehabilitation, notably by freeing himself from alcohol addiction. His commitment to Ms Messina and her children provides him with an incentive to refrain from criminal activity. On the other hand, he has a particularly long and sustained criminal record, both in Australia and New Zealand. When depressed he returned to drug abuse as recently as December 2006. As much of his criminal activity was associated with drugs in one way or another, one cannot dismiss the possibility that if stressed or depressed in the future, he might re-offend. In my view there is a risk of recidivism in this case that lies somewhere between the low and medium marks.
80. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
81. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
82. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
83. In my view it is appropriate in this case to take general deterrence into account as a material factor favouring the decision under review.
Expectations of the Australian Community
84. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
85. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
86. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had “held that it is an attribute of sovereignty that every nation-state is entitled to decide what aliens shall or shall not become members of its community” (219 CLR at page 632).
87. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
88. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).
89. In my view the community will expect that the visa of a person with such a sustained and serious record of criminal activity while in Australia should be cancelled. At the same time, it would be expected that the interests of the three children involved would be carefully considered. To that issue I now turn.
The Best Interests of the Child
90. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
91. The respondent does not deny that the applicant has a genuine and benevolent relationship with Ms Messina’s children, Nathan (aged 12), Tegan (aged 9), and Riley (aged 7), and that they could be adversely affected if the applicant’s visa is cancelled. The applicant says he has been a father figure to them who has spent more time with the children than their own father has, but since February 2006, he has been in prison in New South Wales and subsequently awaiting trial on other charges in Queensland. Mr Johnson argued that the quality of the relationship was difficult to assess in the absence of evidence from anyone but the applicant. There remained a question as to whether the relationship was still in the children’s best interests.
92. On 30 March 2007, Ms Messina wrote a letter to the department (G pp117-118) declaring that she and her children have formed a deep loving attachment to the applicant. They rely on him constantly for support and would be devastated if he were returned to New Zealand. They have maintained regular telephone contact and have visited him during his period of incarceration.
93. It is notable, however, that Ms Messina gave no evidence, written, oral or by telephone, in these proceedings. One might also have expected to see at least some kind of written statement from the eldest child.
94. While the letter was written only four months ago, and one could therefore presume up to a point that the statements made in it still apply, it is also true that relationships can alter or even disintegrate in a short space of time. Thus the absence of any evidence whatsoever from the applicant’s de facto or the children does not, in my view, assist the applicant’s case in relation to this issue.
95. There is also nothing to prevent them from visiting him in New Zealand and with modern methods of communication they will be able to maintain contact through email and webcam.
96. The children’s own father lives in Queensland and they are in regular contact with him. They spend some time with him, such as the week they were together at Christmas. The visits have been less frequent than they might have been, and while that is partly due to the father’s work commitments, the fact that Ms Messina chose to relocate the family to Tenterfield has also played a part.
97. I conclude that while the best interests of the children weigh to some extent against visa cancellation, they do not do so as heavily as might otherwise be the case.
Other considerations
98. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
99. The applicant has an offer of employment as a painter and decorator in Australia, but no business ties to the community as such. He operated his own business in New Zealand before coming to Australia and could no doubt re-establish a similar operation if he were to return there.
100. The respondent does not dispute the de facto relationship with Ms Messina. She is aware of his past (G p117) but there is no evidence to show when she first became aware of his criminal record. But as he had recently completed a term of 12 months’ imprisonment imposed on 3 October 2001 when he met her, it is likely that she became aware of his criminal history at a relatively early stage. As was noted above, Ms Messina gave no evidence at the hearing.
101. If the applicant’s visa were cancelled, his relationship with Ms Messina and the children would be disrupted, but they have already been disrupted as he has been in jail since February 2006.
102. He has a brother in New Zealand with whom he is in regular contact, and three sisters in Australia. The only one he sees with any regularity lives in Melbourne and she could visit him in New Zealand with relatively little additional cost over and above that which she would incur in visiting him in Sydney or in Queensland. There was, as was noted above, no evidence either way from any of his family members.
103. The applicant has taken some steps towards rehabilitation, such as by defeating his alcohol addiction, but he has not been free of offending behaviour for such a length of time that one could conclude that he is unlikely to re-offend.
104. The strongest factor supporting the applicant’s case (although, as I have noted above, rather nuanced in this instance) is the best interests of the children. In my view, however, this is a case comparable with Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240 at para 129, in which Deputy President Forgie concluded that the other matters to be taken into account in the exercise of the discretion outweighed the children’s best interests.
105. In this case the considerations of community protection and expectations outweigh the best interests of the children. The decision under review is affirmed.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ........................[sgd]................................................
R. Wallace, AssociateDate/s of Hearing: 16 July 2007
Date of Decision: 1 August 2007
Solicitor for the Applicant: Unrepresented
Solicitor for the Respondent: Mr Greg Johnson, DLA Phillips Fox
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