"SAAC" and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1209
•16 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1209
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/291
GENERAL ADMINISTRATIVE DIVISION ) Re “SAAC” Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date16 November 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – special category visa sub-class 866 Protection visa – cancellation of visa – discretion not to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No. 21 – primary and other considerations – decision under review affirmed.
PRACTICE AND PROCEDURE – information not provided to Minister at least two business days before hearing – adjournment of hearing to enable information to be provided to Minister – information previously provided other than by proposed witness – evidence to explain or amplify information previously provided – information elicited in cross-examination.
Migration Act 1958 ss 500(6H), 500(6J) and 501(2)
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Re Broadbent and Minister for Immigration and Multicultural Affairs [2000] AATA 822
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024
Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 321
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326
REASONS FOR DECISION
16 November 2004 Deputy President D G Jarvis 1. The applicant, his parents and his infant brother, who was then three months old, arrived in Australia on 7 August 1991, having fled from the Croatian conflict in Yugoslavia. The applicant was only 13 years old when he arrived in Australia, and he was included in a class 663 Class Family Visitor visa. In December 1991 he was included in his parents’ application for a Protection visa. He was granted a sub-class 866 Protection visa on 18 August 1995.
2. On 17 August 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel the applicant’s sub-class 866 Protection visa on the grounds that the applicant did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of that decision.
3. The applicant was unrepresented at the hearing before me, although a lawyer who previously represented him had prepared and lodged with the Tribunal a Statement of Facts, Issues and Contentions prior to the commencement of the hearing. The Minister (the “respondent”) was represented by Mr R J Prince of the Australian Government Solicitor’s Office. The applicant gave evidence, and also called as witnesses his mother, Ms Diana Miller, a social worker from the Department for Correctional Services (“DCS”), and Kerry Clift, a counsellor. The respondent did not call any witnesses. The Tribunal received in evidence the documents lodged pursuant to s 501G of the Migration Act 1958 (Cth) (exhibit A1). Other documents were also tendered, and will be referred to as appropriate in these reasons.
Issues for the Tribunal
4. The Statement of Facts, Issues and Contentions lodged on behalf of the applicant includes a concession that he does not pass the character test under s 501 of the Act. This could not have been contested in any event, because under s 501(6)(c) of the Act, a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c), a person is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.
5. However, there is a discretion not to cancel a visa under s 501(2) of the Act. The applicant has been sentenced to more than 12 months’ imprisonment on four occasions. In view of this and the concession made on his behalf, the applicant has not passed the character test, and so the only issue before the Tribunal was whether the discretion not to cancel the applicant’s visa should be exercised in his favour in the circumstances of this case.
6. Certain further issues of a procedural nature arose during the hearing, namely:
(a)whether the Tribunal should not have regard to the evidence given by Ms Clift, and certain of the evidence given by the applicant’s mother and Ms Miller, because the relevant information had not been set out in a written statement given to the respondent at least two business days before the hearing, as required by s 500(6H) of the Act; and
(b)whether it was appropriate for the hearing of the application to be adjourned to enable witness statements to be prepared and given to the respondent at least two business days before the adjourned hearing, so as to comply with the requirements of s 500(6H).
Background Evidence
7. I make the following findings from the evidence of the applicant and from the documentary material before me. I accept the applicant’s evidence except where otherwise stated in these reasons.
8. The applicant was born on 23 April 1978 in Vukovar, Croatia. Until the commencement of the civil war in Yugoslavia in 1991 he and his family had a good life in Vukovar. They lived in a beautiful house. His father was a professional scuba diver and worked for the Army, and was involved with building pipes under water and with other under-water work. His mother worked as a translator in English for the biggest factory in Croatia, and in the course of her work she assisted with business deals.
9. The city of Vukovar is on the border of Croatia and Serbia. At the commencement of the conflict, Vukovar was surrounded and cut off for about 100 days without water, electricity or food. The applicant was 13 years old at the time and remained with his family in the family home. There was street fighting going on 24 hours a day.
10. Many of the applicant’s family died in the fighting, including his grandfather’s two brothers, who were murdered, as were some of his young friends. His mother’s father was also killed during the conflict.
11. The applicant recalls the Serbian soldiers seizing Vukovar. He said his father hugged him, his mother and his baby brother, and was holding an automatic weapon and hand grenade, and would have killed all of them if the soldiers had walked into their house. The Serbs were going from house to house, killing families, but fortunately they did not enter the applicant’s house. He saw bodies everywhere.
12. The family left their house to go to the applicant’s grandmother’s house to have some food, but they never returned to their own house. The family fled to Hungary, and then came to Australia. He does not even have a photograph of himself as a child. When the family later arrived in Australia, they saw Vukovar on the television news, and saw that their own house had been reduced to rubble.
13. The applicant helped his parents to settle into Australia. He looked after his baby brother for many months while his parents looked for work and until the family was settled and he could begin school.
14. The applicant then went straight into high school at Salisbury High School. His teachers could not believe how well he adopted English as a second language without first going to a school to learn English. While he was at school he engaged in certain sporting activities, and represented South Australia in his chosen sport. He was then selected to go to the Australian Institute of Sport in Canberra and played for the Australian Junior team. After six months he was sent back to South Australia so that he could obtain citizenship.
15. By then his parents had moved to a different suburb, and the applicant changed schools to Woodville High School. Soon after that, an event occurred which had a profound effect on the applicant. He was attacked by a group of Vietnamese youths who later told the police that they had mistaken him for someone else. They attacked him with knives and a baseball bat, and he was stabbed numerous times in the head, shoulder, leg and hands. The attack happened at lunch time in front of teachers, but they did not help him. He was taken to hospital.
16. He saw a psychiatrist for about 18 months or two years, but only went to him a couple of times, and then the psychiatrist moved interstate. He said that he had severe head injuries and for about 18 months he could not concentrate. He went to a different high school, but because of his difficulties, he gave up trying to learn and going to school.
17. About a year after the attack at school, the applicant commenced a relationship with a young woman whom he had first met at the school where he was attacked. By then he was working at a linen cleaning company at Torrensville. They decided to move in together to live close to the linen factory so that he would be able to catch a bus to work. The applicant was working long hours, and also trained for a couple of hours after work in order to pursue his sporting career, and often he would not get home until 10:30 or 11:00 pm. During this period his girlfriend had a miscarriage. She became very depressed, and started spending time with other friends. This involvement led to her developing a drug habit.
18. The applicant said that his girlfriend was his first love, and he would have done anything for her, and he started to commit petty crime in order to obtain money to support her drug habit. When he was 19, he was arrested, convicted and sentenced to a term of 26 months’ imprisonment by Mr Liddy SM sitting in the Elizabeth Magistrates’ Court. He felt aggrieved at the length of this sentence, and his sense that he was treated unfairly appears to have been exacerbated because the magistrate concerned was later convicted of offences involving paedophilia. He said that prison was a bad place and other prisoners had a bad influence on him.
19. After his release from prison, the applicant lived with his parents. He kept in touch with his former girlfriend, but did not see her any more. After a time, he was told that she had died in a car accident. This news was clearly very upsetting to the applicant.
20. At some stage the applicant took a job with a friend of his father who had a roofing business. He had the misfortune to break his right knee very badly when he fell from a roof in the course of this job. As a result he was in hospital for some time and had a knee reconstruction operation. He was then unable to return to his work, and had to give up his sporting activities.
21. The applicant had yet another traumatic experience when his best friend was accidentally shot. He rushed him to hospital, but he died soon after. The applicant said that this “just broke [him] apart”. He said that life had been very hard and he had no-one to help him, he felt ashamed and he took to drugs as a form of escape. He then committed crimes, mostly breaking and entering, in order to support his drug habit. He said that he has not been given an opportunity of rehabilitation, and he got involved with drugs “deeper and deeper”. He became addicted to heroin. He said he needed it like a medicine.
22. Unfortunately during his time in prison he was attacked on two different occasions by the Vietnamese people who were involved in the attack at the Woodville High School. After one of these attacks he was unconscious for an unknown period and woke up in hospital. In the other attack he was stabbed in the head.
23. The applicant referred to further matters in his evidence. I will refer to these matters later in these reasons, in the context of the particular criteria which the Tribunal is required to consider in the exercise of its discretion.
Applicant’s Criminal Record
24. The applicant has the following criminal convictions which resulted in sentences of imprisonment.
Court Offence Date Sentence Adelaide DC
28/08/04
Escape from custody 21/01/04 Imprisonment: 4 months Adelaide MC 27/06/03 1. Non-aggravated Serious Crim. Trespass. (Place of residence).
2. Interfere with m/vehicle without consent.
18/05/01
18/05/01
1-2] Imprisonment: 6 months. Adelaide MC 26/02/03 1. Non-aggravated Serious Crim. Trespass. (Place of residence).
2. Larceny
20/02/02
20/02/02
1-2] Imprisonment: 9 months
(suspended on a $10, 2 year bond).Adelaide MC
10/7/021. Non-aggravated Serious Crim Trespass. (Place of residence).
2. Non-aggravated Serious Crim Trespass. (Place of residence).
3. Non-aggravated Serious Crim Trespass. (Place of residence).
4. Non-aggravated Serious Crim Trespass. (Place of residence).
5. Application for enforcement of a breached bond.
6. Receiving.
7. False information/document to s/hand dealer.
29/05/01
12/06/01
13/06/01
15/06/01
03/06/02
29/06/0029/06/00
1-4] Imprisonment: 32 months. (To commence at the expiration of unexpired parole of 2 months and 28 days)
5] Application granted.
6-7] Imprisonment: 8 months. (cumulative)
Head sent: 42 months 28 days imprisonment.
(NPP 14 months).Elizabeth MC
08/03/011. Receiving.
2. False information or document to s/hand dealer.
3. Unlawfully on premises.
4. Receiving.
29/06/00
29/06/0007/09/00
01/10/001-2] Imprisonment: 8 months. (susp. on a $100 bond for 18 months)
3-4] Cost only
Elizabeth MC
29/03/99Break and enter building and commit offence. 22/01/99 Imprisonment: 15 months.
(cumulative to 13 months 29 days of unexpired parole)
Head sentence: 28 months 29 days (NPP: 10 months)Pt Adelaide MC
10/03/991. Unlawful possession.
2. False pretences.
15/12/97
15/12/971-2] Imprisonment: 1 month Adelaide MC 04/06/98 1. Receiving
2. False pretence.
3. False pretences.
11/02/97
26/02/97
24/04/971-3] Imprisonment: 3 months Holden Hill MC
02/04/981. False pretences.
2. Unlawful possession.
29/10/97
29/10/971-2] Imprisonment: 3 months Elizabeth MC
05/03/98Unlawful possession 18/09/97 Imprisonment: 1 month
(Cumulative on sentence already served)Elizabeth MC
24/12/971. Application for enforcement of breached bond.
2. Break and enter building and commit offence.
3. Break and enter building and commit offence.
4. Estreatment of bail.
5. Estreatment of bail.
6. Estreatment of bail.
24/12/97
26/03/97
20/10/97
24/12/97
24/12/97
24/12/971-2] Imprisonment: 12 months
3] Imprisonment: 14 months
Head sentence: 26 months imprisonment.
(NPP: 18 months, on appeal changed to 10 months)4] $10 Estreatment
5] $500 Estreatment
6] $800 EstreatmentPt Adelaide MC
01/09/97Break and enter building and commit offence. 26/03/97 Imprisonment: 12 months
NPP: 6 months
(sentence suspended for 3 years)Pt Adelaide Children’s Court
18/04/961. Common assault on person other than Family member.
2. Refuse to obey court direction.
03/11/95
03/11/95
1] Imprisonment: 3 months
2] (suspended for 12 months)
Levy only.Pt Adelaide Children’s Court
18/04/961. Unlawfully on premises.
2. Larceny.
3. Fail to comply with bond obligation.
06/03/96
06/03/06
06/03/96
1] Convicted without penalty.
2] 6 days imprisonment
(suspended.)
3] Convicted without penalty.25. I referred in paragraph 18 above to the sentence imposed by Mr Liddy. As appears from the preceding paragraph, this sentence was imposed on 24 December 1997, and entailed a head sentence of 26 months’ imprisonment, including 12 months for breaching the bond imposed when he was sentenced on 1 September 1997 in the Port Adelaide Magistrates’ Court. The applicant appealed against Mr Liddy’s sentence, and a Supreme Court Judge allowed the appeal insofar as the sentence involved a non-parole period of 18 months. This period was reduced on appeal to 10 months, but the sentence was otherwise confirmed.
26. In addition, the applicant has convictions for a number of other offences not resulting in sentences of imprisonment. These offences occurred over a period from 6 March 1996 to 27 June 2003. They included failing to comply with bail agreement, non-aggravated serious criminal trespass (place of residence), larceny, receiving, unlawful possession, driving at dangerous speed, failing to carry his provisional licence and not displaying “P” plates, breaking and entering a building, assault on police and resisting police, failure to truly answer questions, and common assault on a person other than a family member.
27. The first time that the applicant became aware of the respondent’s discretion to cancel his visa and deport him from Australia was apparently during an interview on 12 July 1999 (exhibit A1, page 102). He is recorded as having been shocked by this possibility and it appears that it was in response to that interview that the applicant sent a detailed letter to the Department which is date stamped as having been received on 30 September 1999. A copy of this letter is exhibit R4. In his letter, the applicant acknowledged that it was time to change his ways and choose better friends. He also acknowledged the support of his family. He said that it was his wish to stay in Australia where his family was. The applicant was subsequently sent two letters by the Department of Immigration and Multicultural and Indigenous Affairs about the effects of his criminal conduct on his continued right to reside in Australia. The first was a warning letter dated 6 June 2000, when he was informed that as a result of his conviction on 1 September 1997 for breaking and entering a building he was liable to deportation from Australia pursuant to s 200 of the Act. He was advised that the respondent had decided on that occasion not to order his deportation, but he was warned that any further conviction would lead to the question of his deportation being reconsidered, and that disregard of the warning would work heavily against him.
28. The second notification from the Department is contained in a letter dated 18 November 2003 (see exhibit A1, G15, page 44). This comprises a formal notification of intention to consider cancelling the applicant’s visa under s 501(2) of the Act, because of his criminal convictions in Australia involving sentences of imprisonment of 12 months or more. The letter enclosed a copy of s 501 of the Act and also a copy of the Minister’s Direction No. 21, to which I will refer later in these reasons. In his evidence before me, the applicant said that he could not remember receiving this letter, and said that he would have been in prison when this letter was sent to the address appearing on the letter, which was his parents’ address. However, the applicant prepared a detailed submission to the respondent which appears to have been a response to the above notification, because he expresses the wish that the issue with deportation should be sorted out, and the hope that the Australian Government would give him another chance. I therefore find that the applicant did in fact receive the letter of 18 November 2003.
29. It is also significant that prior to the warning letter of 6 June 2000, the applicant and his father were interviewed by an officer of the Department in April 2000 as part of the Department’s investigation of whether the applicant should be deported in consequence of his conviction (see exhibit R2, which comprises a record of this interview).
Requirement to Provide Written Statement to the Respondent Prior to Hearing
30. It is appropriate, before turning to the evidence given by the three witnesses called by the applicant, to consider the procedural issues which arose during the hearing before me. Section 500 of the Act contains a number of provisions to regulate the procedure adopted by the Tribunal in matters of this kind. Section 500(6H) provides that:
“… the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
A similar constraint applies in relation to any documents submitted in support of a person’s case under s 500(6J).
31. As mentioned above, the applicant was unrepresented. The Statement of Facts, Issues and Contentions lodged on his behalf contains a helpful summary of the facts on which he relied at the hearing before me. However, on the first day of the hearing and after he had completed his examination-in-chief and his cross-examination had commenced, the applicant said that he had not been aware that the matter was listed for hearing that day, and in any event, he had expected that a lawyer would represent him at the hearing. He also said that he wanted to call his mother and also his case worker, Ms Diana Miller, to give evidence in support his application. However, no statements had been obtained from either of them, and the applicant was unaware of the requirements of s 500(6H) or s 500(6J). In view of these matters and in order to afford procedural fairness, I decided to adjourn the hearing, to enable witness statements to be obtained and served on the respondent. This was done and the hearing resumed on 8 November 2004.
32. On the resumed hearing, the applicant’s mother and Ms Miller gave evidence. The applicant advised on that occasion that because of constraints at the Yatala Labour Prison, he had not been able to obtain and bring to the hearing the documents that had been served on him by the Department prior to the hearing, or the transcript of the first day’s hearing. The Tribunal arranged to provide him with a second copy of these documents. The applicant also indicated on that occasion that he wished to call a second case worker, Ms Kerry Clift. In the circumstances, and once again in order to enable a written statement of Ms Clift’s evidence to be provided to the Department before she gave oral evidence, I further adjourned the hearing until 15 November 2004. On the occasion of each adjournment, Mr Prince for the respondent reserved his position on whether this course was permissible under s 500(6H) of the Act.
33. When the matter resumed again on 15 November 2004, Mr Prince submitted that the reference in s 500(6H) to the requirement to give to the respondent at least two business days before the Tribunal “holds a hearing” is a reference to the commencement of the hearing and, accordingly the requirements of the section could not be avoided by adjourning the proceedings.
34. Mr Prince relied in support of his submission on the decision of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378. In that case, the Court decided that the Tribunal had a discretion to receive documents in evidence which had been provided by the respondent to the applicant even though the respondent did not provide them within the time frame required under the Act. Gray J (with whose judgment Nicholson and Stone JJ agreed) referred to s 500(6H) and (6J) which imposed restrictions on the applicant. His Honour said at [25]:
“The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put.”
He also referred to the second reading speech and to the intention of the sections, namely to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test.
35. Gray J also referred in his judgment to circumstances which meant that in the events that had occurred in that case, any disadvantage to the applicant in not receiving the documents from the Minister earlier had been ameliorated. This was in part because the Minister had invited the Tribunal to give the applicant an adjournment for some days to consider the relevant documents. His Honour then said at [31] (although this was not essential to his decision):
“The (applicant) declined this offer. In any event, the offer was probably based on a misunderstanding of the effect of subs (6H) and subs (6J). Once the Tribunal began a hearing, the entitlement of the (applicant) to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to the documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing.”
36. I also note that a similar view that an adjournment would not be an appropriate way of overcoming the requirements of s 500(6H) was expressed by Deputy President Chappell in Re Broadbent and Minister for Immigration and Multicultural Affairs [2000] AATA 822 at [63], where he said that:
“… quite apart from the relentless ticking of the decision making clock which cannot be stopped for any reason … the wording of the section would seem to envisage that once the hearing has commenced no such written statements can then be filed no matter what new circumstances or evidence may arise.”
37. In an earlier Tribunal case, namely Re Msumba and Department of Immigration and Multicultural Affairs (2000)] 31 AAR 192, Deputy President McMahon referred to the practical difficulties which arise from the expedited Tribunal procedures mandated by s 500(6A) to (6L) of the Act. The Deputy President indicated that evidence which explained or amplified a written statement would be admissible. He said at [5]:
“It may well be that strictly the subsection makes ineffective any oral hearing. Read literally, the subsection would restrict a witness simply to reading the statement which had been previously furnished. It would preclude any information elicited by the Department’s advocate by way of cross examination, unless it could be said that such information was not in support of the applicant’s case. I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination. In doing so, I have relied on subsection 33(1) of the Administrative Appeals Tribunal Act 1975 which prescribes the nature of the procedures which this Tribunal should adopt. The freedom and flexibility of that subsection, however, may well have been limited by the provisions of subsection (6H).”
38. In the present matter, Mr Prince very properly conceded that I could have regard to evidence which would explain or amplify material in written statements which had been provided within the appropriate time. In these circumstances, I think that it is not necessary for me to decide whether I should not have regard to the evidence in question on the grounds that I had decided to adjourn the hearing of the present application to enable written information to be provided from the additional witnesses whom the applicant wished to call.
39. Mr Prince further contended that s 500(6H) would prohibit a witness from giving oral evidence even where the relevant information had been provided to the respondent within the requisite time, but had come from a source other than the witness concerned.
40. In support of this further contention, Mr Prince relied on the decision of this Tribunal in Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024. In that matter the applicant had submitted a brief outline of the evidence which was proposed to be given by three named witnesses. Deputy President Forgie examined various authorities as to the meaning of the word “information” in s 500(6H), and referred to the purpose of the statutory scheme of which s 500(6H) is a part, as explained in Goldie (supra). She then concluded at [50] that:
“The “information” to which reference is made in s.500(6H) must be a reference to a person’s knowledge about facts or about a particular subject matter that is presented in support of an applicant’s case. It is not a reference to the topics on which a person has knowledge about those facts or that subject matter.”
Deputy President Forgie said further, at [51], that “whether or not information has been set out in any written statement given to the Tribunal is a matter of fact and degree.”
41. Whilst I agree with Deputy President Forgie’s helpful analysis in this case, I do not think that she had adverted to the question of whether the relevant information could come from a source other than the witness whose eligibility to give oral evidence was in question. I do not think that s 500(6H) should be interpreted in this way. The subsection refers to “information”, and does not relate the prohibition on the receipt of information to the source of that information, and does not refer to the Tribunal being constrained from having regard to the evidence of a witness unless he or she has previously provided a written witness statement. It seems to me that circumstances could arise where information has been provided to the Minister from one witness, but that witness might later be unable to give evidence; if a second witness were able to provide the same information, s 500(6H) would not in my opinion prevent the Tribunal from having regard to this information. The purpose of s 500(6H) would still be achieved, because the applicant would not have changed the nature of his or her case, and would not thereby be putting a new case (to use the language of Gray J in Goldie (supra)).
42. I further consider that the prohibition against the receipt of oral evidence in s 500(6H) would not apply to evidence elicited in cross-examination, because this could not be said to be information presented orally in support of an applicant’s case (see Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 321).
43. In the present matter, Mr Prince acknowledged that there was information before the Tribunal and the respondent as to the contents of the particular subject matter in the statements of both Ms Miller and the applicant’s mother, except however where those statements include a reference to:
(a)certain aspects of the applicant’s mother’s reference to the applicant’s former girlfriend;
(b) Ms Miller’s reference to:
(i)her personal understanding of the status of an offence involving home invasion;
(ii)the impact of relocation to Croatia upon the applicant’s family; and
(iii)her opinion as to the expectations of the Australian Community.
44. Having regard to my analysis of the effect of s 500(6H) and s 500(6J), I consider that I cannot have regard to the subjects referred to in paragraph 43(a), (b)(i) and (b)(iii) above. However, with respect to Ms Miller’s evidence as to the possible impact that relocation to Croatia would have upon the applicant’s family, I consider that the respondent was placed on notice about the details of this information in the letter that comprises exhibit R3, and in the applicant’s Statement of Facts, Issues and Contentions at paragraphs 25, 27, and 29. I therefore conclude that I can have regard to this information.
45. I shall refer below to the effect of s 500(6H) on the evidence provided by Ms Kerry Clift.
The Applicant’s Mother
46. The applicant called his mother to give evidence to the Tribunal, and she did so at the hearing on 8 November 2004. She also filed a statement jointly made with the applicant’s father on 3 November 2004. I refer to my above reasons as to the impact of ss 500(6H) and (6J) on the evidence of the applicant’s mother.
47. The applicant’s mother gave evidence which confirmed his own evidence about his family’s life in Croatia. She also confirmed the circumstances of the school yard attack and the impact it had upon the applicant. She gave evidence that she believed that the applicant’s former girlfriend with whom he had lived for some time was a bad influence upon him. She also told me that both she and her husband feel responsible for the applicant’s situation because it was their decision to bring him to Australia. It was also her view that they had not received much assistance once they arrived in Australia; she felt as though people had “washed their hands” of the applicant, and if she had known what was going to happen to her son, she would never have brought him to Australia. The applicant’s mother confirmed that if the applicant is deported to Croatia then it is the family’s intention to relocate back to that country, even though they feel Australia is now their home. She believed that such a move would be a shock, and she did not know what their future would hold as her husband is still unable to work due to his neck injury.
Evidence of Diana Miller
48. Ms Diana Miller provided a report which was tendered in evidence as exhibit A5. She is a community corrections officer and social worker. In her report Ms Miller explains that her work involves “the assessment and supervision of adult offenders, including referrals to programs and treatment both within and without DCS, report writing and practical assistance and support to people on probation, parole and bail”. Ms Miller has worked in this role for 25 years and has known the applicant since 1999, when he was 21 years old. In her time as his supervisor, while he was in the community, Ms Miller supervised three parole periods and one court imposed bond. She has maintained intermittent contact with the applicant during his imprisonment, and has met his family on several occasions.
49. Ms Miller recounted the applicant’s history, as told to her, of his experiences in Croatia. She pointed out that his family left Croatia in such a state of urgency that they arrived in Australia with “virtually nothing”. She also recounted the circumstances of the attack on the applicant while at Woodville High School. She explained that although he was offered some medical assistance, the family was in deep shock, and with a limited grasp of English they attempted to cope with the situation by “getting on with their lives” and “pushing the incident into the background”.
50. Ms Miller related the start of the applicant’s offending behaviour to the demise of his sporting career and inability to complete school following the attack, as well as his relationship with a young woman who developed a heroin addiction. Ms Miller’s report states that as his girlfriend’s heroin habit burgeoned the applicant tried to “help” her by committing “petty crime”, and he also succumbed to drug use himself.
51. Ms Miller reports that the applicant was assaulted in jail twice as a result of coming into contact with the same people who initially assaulted him at Woodville High School. In her view, these subsequent violent attacks, one of which resulted in unconsciousness, deepened the impact of the original school assault. Ms Miller understands that the applicant is suffering from post-traumatic stress disorder (“PTSD”) and thinks that this was exacerbated further by the death of his close friend as a result of an accidental shooting.
52. In her report, Ms Miller explains that the applicant’s offending is related to his drug problem. She also explains that for many years he was in self-denial about his own drug addiction. Ms Miller locates the foundation of this denial in the shame attached to admitting the addiction and his parents’ strong anti drug views. Recently, she says, he had taken the positive step of accepting the impact of his drug addition on his offending. While he maintained a drug-free existence for a longer period on his last parole, he relapsed due to his re-association with old friends.
53. Ms Miller conceded that the applicant’s behaviour in prison is “erratic”, but she asserted that the pressures of the prison environment rendered it an inappropriate indicator of normal behaviour. Ms Miller had always found the applicant to be polite and cooperative in the community. She reports that the applicant obtains work easily and throws himself into his work upon release. However, in putting so much effort into obtaining work and undertaking overtime, the applicant had not prioritised counselling or psychological intervention. This, in turn, had led to a relapse in his drug taking behaviour. Ms Miller pointed to the overstretched psychological and psychiatric services of the DCS, and the expense of these services in the private sector, as further reasons for the applicant not having accessed necessary treatment.
54. Ms Miller reports that “(the applicant) does not deny that his offending is serious and extreme”. However, in cross-examination it became apparent that these were not the applicant’s words, and she had never directly asked him this question. Ms Miller asserts in her report that the applicant’s offending has never been violent or of a sexual nature, nor have they involved crimes against children, drug importation or production, and has not associated with subversive groups, although in the course of cross-examination, Ms Miller conceded that the applicant’s conviction for assault police would be considered a violent offence.
55. Under the heading “Family Considerations”, Ms Miller reports that the applicant is extremely close to his family, and that although his parents disapprove of his behaviour, they are loving and will stand by him. She confirms that the family will return to Croatia, if necessary. She also says that such a move would be traumatic, particularly as the applicant’s 13 year old brother knows almost nothing of Croatia and would have to leave behind the school and community he knows here.
56. Ms Miller adopted the contents of her written report and expanded on some parts of it in her oral evidence. Throughout her report, Ms Miller refers to the applicant’s PTSD. However, she acknowledged that she was not qualified to diagnose PTSD, and following questions as to the origin of this diagnosis, she subsequently faxed to the Tribunal a report of one Lesley Work, a registered nurse, dated 27 November 2001 (see exhibit A7). That report refers to the possibility of an undiagnosed condition of PTSD.
57. Ms Miller also explained that it was from the applicant’s parents that she gained the impression that the family had not received a great deal of support or medical assistance after the school assault. Ms Miller said that she found it “very disappointing” that within weeks of being warned of possible deportation if he were to commit further offences, he re-offended. She also explained that in her view the applicant does not cope well in prison, and that his behaviour in custody was so bad because of the prison environment.
Evidence of Kerry Clift
58. Ms Kerry Clift, a counsellor with the Salvation Army and previously the drug and alcohol treatment provider and case worker for the applicant in the Drug Court, provided telephone evidence in support of the applicant’s case. She also provided a written statement dated 9 November 2004 which was received by the Tribunal and the respondent on 10 November 2004, and has been marked for identification MFI A8. I refer to my discussion of the impact of s 500(6H) of the Act above, and record that Ms Clift’s evidence included reference to the applicant having received two treatment sessions from a psychologist, a Dr Bowling, who subsequently referred the applicant to a psychiatrist (although it appears that he did not ever follow up this referral). In deciding to have regard to Ms Clift’s evidence, I note that material on this topic was already in the respondent’s possession and appears in a pre-sentence report at page 79 of exhibit A1, which records that:
“(the applicant’s) case worker on the Drug Court program reports that she … remained so concerned about aspects of his personality that she had referred him for neuro-psychological testing in the belief that he may have sustained damage through previous head injury … before the appointment could take place, (the applicant) was returned to custody.”
59. In her written statement Ms Clift also recounted certain history in relation to the applicant, but this did not add anything to the facts already in evidence, and appeared in some respects to be incorrect. She also referred to other matters involving the Drug Court Diversion Program Team which were not included in information previously provided to the respondent. I accordingly cannot have regard to these matters and have not admitted her written statement in evidence.
Legislation
60. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of 12 months or more.
61. Subsection 501(2) provides as follows:
“(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
Consideration of Ministerial Direction No. 21
62. According to the Statement of Facts, Issues and Contentions lodged on behalf of the applicant (exhibit A4) he conceded that he failed the character test, but he submitted that the discretion under s 501(2) of the Act should be exercised in his favour, and that his visa should not be cancelled. By virtue of s 499(2A), in considering this issue, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”) (being a Direction made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501). Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall consider the relevant considerations in the Direction in turn.
The three primary considerations in Direction No. 21 are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
63. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
64. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)) or a lighter sentence would have been imposed in Australia (paragraph 2.8(c)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
65. The offences committed by the applicant which resulted in terms of imprisonment are listed in paragraph 24 above. The fact that sentences of imprisonment were imposed is of itself an indication that the Courts concerned regarded those offences as serious, although in a number of instances, the sentences were suspended on condition that the applicant entered into a good behaviour bond. However, the applicant’s history of offending was such that he frequently breached his bonds, so that the suspended sentences were then enforced. I also note that in the case of four of the convictions recorded, the terms of imprisonment imposed were greater then 12 months.
66. The applicant submitted that his offences essentially amounted to breaking and entering offences, but no one was present in any of the properties he broke into, he did not harm any person physically, and did not commit any of the offences in the company of another person. He said that he acknowledged the seriousness of his conduct, but asked me to take the above matters into account, and pointed out that the offences he committed were of a less serious kind in the scale of criminal conduct. There is some force in this submission, taking into account the range of offences set forth in paragraph 2.6 of the Direction. However, the offence of “home invasion” is included in paragraph 2.6(e) of the Direction. I do not accept that applicant’s argument that the offences which in the main he committed, being non-aggravated serious criminal trespass contrary to Part 6A of the Criminal Law Consolidation Act 1935 (Sth Aust), did not amount to “home invasion” within the meaning of paragraph 2.6(e) of the Direction.
67. Mr Prince drew my attention to three convictions for assault, which are of course crimes involving violence to another person. However, the most recent of these three offences was in 1996, and in two cases the applicant was convicted without penalty and in the third case he was imprisoned for three months but his sentence was suspended. The applicant’s record is such that his offences do not involve violence to the person. I have taken this into account, as well as the fact that the crimes could not be described as repugnant.
68. The applicant’s complete criminal history, including offences which did not result in terms of imprisonment, is set out at pages 2 to 4 of exhibit A1. The applicant’s record shows, as he frankly admitted, that he has spent most of the last six years in custody, and taking this into account, the time between offences was very short. His most recent offence was committed in January this year and entailed escaping from lawful custody, and it appears that this was committed within a matter of weeks of the completion of the sentence for his then immediately prior conviction in June 2003 for non-aggravated criminal trespass, which resulted in a term of imprisonment of six months. I consider that the applicant’s criminal conduct must be described as serious, not so much because of the nature of the offences he committed, but rather because of the frequency and number of his convictions.
69. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it 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.
70. Unfortunately, it appears from the applicant’s previous conduct and criminal history that there is a very strong likelihood that he would offend again if he were to resume life in the Australian community. On each occasion when he has been released from prison, he has offended again within a comparatively short period of time. Further, on a number of occasions he was given parole or entered into a bond to be of good behaviour, so that he was given the opportunity of avoiding criminal conduct and taking his place as a law abiding citizen within our community. However, he did not take advantage of these opportunities. He apparently continued to associate with people who were involved with drugs. I take account of the evidence of Ms Miller that the rehabilitation services available to the applicant were inadequate, but he nevertheless failed to avail himself of the opportunities of rehabilitation and assistance, such as they were, that were available to him.
71. General Deterrence The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any cancellation of a visa. In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of the applicant, and that may provide some deterrence to other persons. Further, the fact of cancellation puts the respondent in a position where it could point to an established precedent and, indeed, it could give some publicity to this precedent if this became necessary. Although in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme, it is considered that on balance this consideration points in favour of cancellation of the visa.
Second Primary Consideration – Expectations of the Australian Community
72. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. As Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], there would also be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination. This further increases the potential extent of diversity of views within the Australian community, and adds to the difficulty of the decision-maker in formulating the expectations of the Australian community in a particular matter.
73. In the present matter, I have taken into account the series of misfortunes which have adversely affected the applicant from and after the assault at the Woodville High School. What had apparently started out as a promising and bright future for a new life in Australia progressively changed through a series of events which were outside the applicant’s control. There is a suggestion from Ms Miller’s evidence and from exhibit A7 that the applicant is suffering from PTSD. I note in this regard that in his evidence, the applicant said that he suffered from nightmares involving the assault at the Woodville High School, and he said that he took to drugs in order to escape from the pressures he was under as a result of the various events which had affected him. He described further symptoms as long ago as in 1999, when in a letter to the Department he referred to his inability to concentrate on doing school work and to having had flashbacks and nightmares. I accordingly consider that there is considerable evidence to support the view that the applicant is indeed suffering from PTSD.
74. I am also mindful that the applicant feels that no-one has understood his position and he has not been given adequate treatment or rehabilitative support. However, I must also take into account that the applicant has had assistance from Ms Miller and Ms Kerry Clift, and had some treatment from a psychiatrist for 18 months or two years after the assault at the school. As mentioned above, it appears that he did not take full advantage of the assistance that was available to him, perhaps because he spent much of his time working after he was released from prison. The applicant must take some responsibility himself for his actions, especially as he grew older.
75. Whilst it is reasonable to conclude that the Australian community would be sympathetic to the applicant, persons who are permitted to remain in Australia are nevertheless expected to be law abiding citizens. I think that the Australian community would not expect a person with the applicant’s history of repeated criminal conduct to be permitted to remain in Australia, in view of the number of opportunities he has already been given to alter his ways.
Third Primary Consideration – Best Interests of a Child or Children
76. Paragraph 2.15 states that, in general terms, the child’s best interest will be served by remaining with his or her parents. When assessing this consideration, decision-makers are directed by paragraph 2.16 to have regard, amongst other things, to the nature of the relationship between the child and the non-citizen (2.16(a)); the duration of their relationship and number and length of any separations (2.16(b)); the age and migration status of the child (2.16(c) and (d)); the likely effect of separation (2.16(e)); the time the child has spent in Australia (2.16(g)); the circumstances of the receiving country (2.16(h)); and any language and cultural barriers that may be encountered in the probable country of future residence (2.16(i) and (j)).
77. The applicant does not have any children. However, Direction 21 refers to “a parental or other close relationship between a child…and the person under consideration” and, as such, the applicant’s relationship with his 13 year old brother and the best interest of that child must be considered.
78. Whilst it is clear that the applicant has a good relationship with his parents, and that they lovingly support him as best they can, the relationship between the applicant and his brother has not been the subject of specific evidence before me. The applicant’s parents remain in contact with him, but it is not clear to me whether the applicant is presently in what could be called a “close relationship” with his brother. The applicant has merely said that his brother looks up to him, but he has not had daily contact with his brother for a significant portion of his life. Conversely, there is no evidence that their relationship is dysfunctional, and a sibling relationship would normally be a close one. I am of the view that even in the present situation, the relationship between the applicant and his brother falls for assessment under this primary consideration.
79. In his Statement of Facts, Issues and Contentions the applicant submits that should he fail in his attempt to have the decision under review set aside, the family will move to Croatia in order to support him. The applicant’s mother confirmed this in her oral evidence. In relocating to Croatia, the applicant’s young brother will be forced to leave behind his friends, school and the only community he has known for the last 13 years. The applicant will be required to serve the balance of the term of his prison sentence in Australia, and so will not be deported for at least two or three years, depending on the outcome of certain further charges against the applicant which are still outstanding. By the time the applicant is deported his brother may be 15 or even 16 years old. If he remains in Australia, he would be geographically separated from the applicant, but he would retain the benefits of the community in which he has grown up. If the family relocates to Croatia, then the applicant’s brother will face the stresses and cultural difficulties that accompany migration to another country, but the family would be united, and his parents will be able to assist him. The decision to move their youngest child back to Croatia is one that the applicant’s parents will have to make, keeping in mind the needs of both of their sons. This may be a very difficult decision, but it is one that the family can prepare for and make over the coming years. In the circumstances, I conclude that the cancellation of the visa would not necessarily be contrary to the best interests of the child.
Other Considerations
80. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, the Tribunal takes into account the preface to paragraph 2.17, which reads as follows:
“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 …” (emphasis added).
This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
81. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. It is noted that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the respondent by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant : see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326.) It appears that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 now includes the word “generally”, whereas previously the corresponding paragraph of Direction No. 17 omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
82. I have concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
83. The first of the other relevant considerations is “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community” (paragraph 2.17(a)). Section 503(1)(b) of the Act provides, in part, that a person in relation to whom a decision has been made under s 501, 501A or 501B of the Act is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations. There is currently no regulation with respect to this section. Furthermore, the Special Return Criteria 5001 contained in Schedule 5 of the Migration Regulations 1994, provides for the permanent exclusion of non-citizens whose visas have been cancelled under s 501(2) of the Act due to failure of the character test under s 501(6)(a). If an individual is the subject of a permanent exclusion in accordance with the Special Return Criteria 5001, the only means by which such an individual may return to Australia is through the grant of a criminal justice visa pursuant to subdivision D of Division 4 of the Act. This visa applies to people who are required to be witnesses in criminal proceedings in Australia, or are extradited to Australia to face criminal charges. Accordingly, if the cancellation of the applicant’s visa is confirmed, the applicant will effectively not be allowed to return to Australia under the Act as it now stands.
84. As mentioned above, the applicant’s parents intend to relocate to Croatia so they can be with the applicant. This will be a very significant disruption to their lives. Such a relocation is made all the more difficult when the circumstances in which the family fled Croatia are taken into account. The applicant’s father is unable to work due to a neck injury, and there is no material before me as to the status of extent social security benefits in Croatia. I have taken into account the extent of the disruption to the applicant’s family, and to their young son in particular, if they decide to relocate to Croatia. However, due to the events which have affected the applicant, the family’s experience in settling in Australia has been most difficult and unfortunate, and it may well be that their present intention to return to their homeland might ultimately be in the family’s best long-term interests. Their decision means that the cancellation of the applicant’s visa will not lead to the disruption of their family.
85. There are no other relevant considerations which arise out of paragraph 2.17(a), because the applicant has no particular business or other ties to the Australian community.
86. If the applicant’s parents change their mind and decide not to return to Croatia, then they would presumably be able to visit the applicant from time to time in Croatia, and could assist him to re-establish there.
87. Paragraph 2.17(k) of the Direction also requires me to take into account that the applicant has, on the evidence to which I have already referred, been warned on three occasions that his visa was liable to cancellation if he continued to offend. This consideration also counts against the applicant.
88. The applicant said that he accepted responsibility for his wrong doing. He is aware that if the cancellation of his visa was confirmed and he was deported to Croatia, his parents and young brother would probably sell up and go back there with him, although that would be for them to decide. This prospect is clearly most distressing to him, because he said he does not want to be the cause of “destroying [his] little brother’s life or their life any further” because of his wrong doing.
89. The applicant further said that if he returned to Croatia, he expected that he would be put in to the Army for 12 months, apparently because this was compulsory for a Croatian citizen. He said that he had only spoken once to his grandmother who was sick. He said he thought he may be able to stay with one of his mother’s friends until he worked out where he was going to live. He was not sure what arrangements could be made. However, if the applicant’s family relocates, he will have their support, and even if this does not occur, his parents will have time before his deportation to make the best possible arrangements to assist him to establish a new life in Croatia.
Conclusion
90. I have taken into account all of the evidence before me. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, but also having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, I have decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be not be exercised in the applicant’s favour, and accordingly the visa should be cancelled. The decision under review is accordingly affirmed.
I certify that the 90 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 25 October 2004, 8 November and 15 November 2004
Date of Decision 16 November 2004
Counsel for the applicant In person
Solicitor for the applicant -
Counsel for the Respondent Mr R J Prince
Solicitor for the Respondent Australian Government Solicitor
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