SAMUEL HUTCHINS and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 343
[2013] AATA 343
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1067
Re
SAMUEL HUTCHINS
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 27 May 2013 Place Brisbane The Tribunal affirms the decision under review.
.............................[Sgd]...........................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (Temporary) Visa – New Zealand citizen – Cancellation – Substantial criminal record – Failure to pass character test – Discretion to cancel visa – Relevant considerations – On balance, primary and other considerations favour cancellation of visa – Preferable decision is that visa be cancelled – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501
CASES
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
THE APPLICATION
Samuel Hutchins applied to the Tribunal for review of a decision, dated 9 July 2012, of a delegate of the Minister for Immigration and Citizenship (“the respondent”) cancelling his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
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.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the character test within the meaning of that section. In the present case, the relevant circumstance relied upon is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the character test, a person has a substantial criminal record. In the present case, the relevant circumstance is that specified in s 501(7)(c), namely that Mr Hutchins has been sentenced to a term of imprisonment of 12 months or more. This is not disputed. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister has issued Direction No. 55[1] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act.
[1] Direction No. 55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.
[2] See s 499(2A) of the Act and the term “Decision-maker” in Annex B of the Direction.
In the Preamble to the Direction, the objective of the Act is stated to be the regulation, in the national interest, of the coming into and presence in Australia of non-citizens.[3] It provides that if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that he/she passes the character test, the decision-maker must consider whether to exercise the discretion to cancel the visa, given the specific circumstances of the case.[4] The Preamble also provides General Guidance, including the following:[5]
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
[3] See cl 6.1(1) of the Direction. A “non-citizen” is defined in s 5 of the Act as a person who is not an Australian citizen.
[4] See cl 6.1(2) of the Direction.
[5] See cl 6.2(1) of the Direction.
The Preamble to the Direction then sets out six Principles which must inform the exercise of the discretion whether or not to cancel the visa:[6]
1.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern[7] are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
[6] See cls 6.3 and 7 of the Direction.
[7] The term “character concern” is defined in s 5C of the Act and Annex B of the Direction.
The Direction provides that “primary” and “other” considerations must be taken into account where relevant; that both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa; that primary considerations should generally be given greater weight than the other considerations; and that one or more primary considerations may outweigh other primary considerations.
Three[8] of the four listed primary considerations are relevant in this matter:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia; and
(c) The best interests of minor children in Australia;[9]
…
[8] It is not in dispute that the fourth primary principle (International non-refoulement obligations) is not applicable in respect of New Zealand.
[9] See cl 9(1). A “minor” is defined in s 5 of the Act as a person is who less than 18 years old.
Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[10]
[10] See cl 10 of the Direction.
(a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b) Impact on Australian business interests;
(c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(i) The person’s age and health;
(ii) Whether there are substantial language or cultural barriers; and
(iii) Any social, medical and/or economic support available to them in that country.
EVIDENCE
Criminal history
Mr Hutchins’ criminal history in Queensland is set out in a National Police Certificate,[11] dated 28 May 2012, from the Australian Federal Police as follows:
[11] See Exhibit 1, G-document 7, pp. 97-98.
Court
Offence
Penalty
Southport Magistrates Court
14 January 2011
Commit Public Nuisance (2 charges)
Assault or Obstruct Police Officer
Common Assault (2 charges)
Breach Bail Granted Condition
No conviction recorded. 12 months’ probation. Southport Magistrates Court
27 January 2011
Breach Bail Granted Condition
Fined $150
Southport Magistrates Court
1 February 2011
Breach Bail Granted Condition (2 charges)
Fined $500
Southport Magistrates Court
29 September 2011
Breach of Probation Order
Order(s) revoked resentenced for original offence(s) on all charges: Conviction recorded. Fined $1000.
Commit Public Nuisance (2 charges)/Assault or Obstruct Police Officer/Common Assault (2 charges): On all charges: Fined $700.
Southport District Court 19 April 2012
Grievous Bodily Harm
Imprisonment: 5 years
Robbery with Actual Violence/in Company/Used Personal Violence (2 charges)
Robbery with Actual Violence/Armed/in Company/Wounded/Used Personal Violence
On all charges: Imprisonment 3 years.
Unlawful Assault Occasioning Bodily Harm Whilst in Company (2 charges)
On all charges: Imprisonment 12 months Concurrent. Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 445 days
Stealing from the Person
Imprisonment 6 months
Stealing
Unlawful Possession of Suspected Stolen Property (2 charges)
Common Assault
Breach Bail Granted Condition
On all charges: Conviction recorded not further punished. The offences
Mr Hutchins accepted that he had been convicted of the offences set out in the criminal history above and that it correctly recorded the penalties that had been imposed on him.
In evidence were copies of court briefs in relation to the matters for which Mr Hutchins was convicted. He agreed that, in the main, they correctly recorded his involvement in them. In addition to the offences listed above, a court brief records that, on 14 January 2011, Mr Hutchins was convicted in the Southport Magistrates Court with being an unlicensed driver while above the mandatory zero blood alcohol limit. That resulted from a motor vehicle accident on 26 December 2010 involving a vehicle which Mr Hutchins had been driving, though he denied this at the time. He is recorded as admitting to consuming alcohol from 8.30am until 10.40pm that day.[12] The court brief also noted that Mr Hutchins had been disqualified from holding a driver licence in 2009 for a period of 18 months.[13] In his evidence, Mr Hutchins said that he had been charged in November 2009 with driving while unlicensed after he was apprehended riding a motorcycle on a public road at age 15 years.
[12] See Exhibit 2, pp. 95-96.
[13] See Exhibit 2, p. 96.
The public nuisance offences, common assault, and the assault/obstruct a police officer dealt with on 14 January 2011 were detailed in a court brief and relate to incidents which occurred on 28 December 2010.[14] Mr Hutchins was with a group of males at a shopping centre causing a disturbance and threatening staff members, including a female store attendant who intervened when Mr Hutchins was seen kicking store merchandise on the floor. While being escorted from the premises by security staff, Mr Hutchins removed his shirt, swore at security staff and invited them to “have a go”. On passing a coffee shop, Mr Hutchins picked up a chair and threatened to throw it at a security staff member. He was arrested by police and taken to the Southport watch house. Mr Hutchins had violently struggled with the police in resisting arrest at that time. In all of this, Mr Hutchins constantly abused security and police with foul language while at all times being in close contact with members of the public including children. At the watch house, it was noted that Mr Hutchins was intoxicated and was unable to be interviewed. In his evidence, Mr Hutchins said that he was intoxicated as a result of drinking a bottle of Jack Daniels Whisky which had been taken from a bottle shop at the shopping centre.
[14] See Exhibit 2, pp. 99-101.
A court brief details the matters dealt with in the District Court on 19 April 2012. Offences of robbery and assault occasioning bodily harm whilst in company occurred around 2am on 16 January 2011.[15] Two tourists, a male and a female, were sitting on the sand near a park bench when Mr Hutchins and two other males approached them. One of the men punched the male victim several times in the face. During the assault, the male victim’s phone and keys were stolen from the pocket of his jeans and the female victim’s phone was taken from her hand. The male victim suffered swelling and bruising to his face. Mr Hutchins’ evidence was that he had not committed the assault or taken a phone but was aware of what his associates were doing and knew that what was happening was wrong.
[15] See Exhibit 2, pp. 107-109.
The court brief describes offences of doing grievous bodily harm and robbery which also occurred on 16 January 2011.[16] At about 3.15am, the 22 year old male victim was walking along the side of the highway when he was confronted by three males including Mr Hutchins. He was punched in the head which caused him to fall to the ground. His wallet, phone, money and keys were then taken. He was located subsequently lying unconscious by two passers-by who had witnessed the assault. Mr Hutchins was later arrested by police and he admitted to punching the victim, declaring: “Got my body weight with it”. The victim remained in an induced coma for nine days in Southport Hospital. He suffered a fractured skull and brain damage. In his evidence, Mr Hutchins said that he and his associates had brushed past the victim who said something to them; his associate responded verbally; the victim then advanced towards them; Mr Hutchins realised his associate was in fear; and Mr Hutchins intervened to help him by punching the victim. He said that the reference to his “body weight” meant that he struck the victim with a hard punch.
[16] See Exhibit 2, pp. 111-114.
A court brief details another robbery and counts of assault occasioning bodily harm whilst in company on victims from whom a phone was stolen. This occurred on 23 January 2011 at about 3.30am. The two victims were approached by Mr Hutchins and two associates who asked the victim for money. The victim woke up in hospital with a small fracture to his cheek and grazes to his hands. His phone was missing. Another victim was also punched three times in the face.[17] In his evidence, Mr Hutchins said that his request had not been for money but for marijuana which he believed the men had been smoking.
[17] See Exhibit 2, pp. 115-119.
Sentencing remarks
In sentencing Mr Hutchins, Judge McGinness noted that Mr Hutchins had pleaded guilty to all of the charges and she had regard to Mr Hutchins’ youth, his mental issues, including posttraumatic stress disorder, and the time already spent in custody.[18]
[18] See Exhibit 1. G-document 7, pp. 69-72.
Mr Hutchins
Mr Hutchins was born in New Zealand on 23 November 1993. He visited Australia from 27 February 2007 until 11 December 2007 and from 12 January 2008 until 23 July 2009. He has been continuously here since 27 July 2009, at which time he was aged 15 years.[19]
[19] See Exhibit 1, G-document 7, pp. 39-40.
Mr Hutchins’ mother died when he was three or four years old. He lived for a time with his father but his life in New Zealand was spent mainly in the care of relatives. That included his aunt, Violet Hutchins, who, Mr Hutchins said, had migrated to Australia in the late 1990s and has permanent Australia residency. Mr Hutchins regards Ms Hutchins as his step-mother. She lives on the Gold Coast and, Mr Hutchins said, his two early trips to Australia were vacations during which he stayed with her. In 2009, he migrated to Australia to live with her and attended school, spasmodically, for two years undertaking a mixture of courses from years 9, 10 and 11. He described her as having been ill with diabetes mellitus which is now well-managed. Mr Hutchins’ father is serving a term of imprisonment in New Zealand. He has uncles, aunts and cousins in New Zealand but was uncertain of their numbers. He has a sister in New Zealand with whom he has remained in contact. He also has several half-brothers and half-sisters in New Zealand with whom he has lost contact. Apart from Ms Hutchins, Mr Hutchins said that he has no other relatives in Australia. While he was living with Ms Hutchins at the Gold Coast, Mr Hutchins was frequently using drugs and alcohol. Ms Hutchins had remonstrated with him for this and regularly banned him from her premises. During those periods, Mr Hutchins lived with friends, sometimes for weeks or even months at a time.
Before he was imprisoned, Mr Hutchins had formed an association for a few months with a young woman who is an Australian citizen. They have not co-habited but have a daughter, “A”, who was born on 17 August 2011 while Mr Hutchins was in prison. He has seen A on two occasions. This was when the mother took her to visit him in prison. He has not seen the mother for some 12 months but has been in telephone contact with her and this has enabled him to speak to A by phone.
Mr Hutchins has not been engaged in employment in Australia although he tried for two days to work in a labouring position. He was unable to cope with it. He played football while he was at school and also was involved for most of a season with a football club on the Gold Coast. He has not been a member of any other clubs, societies or organisations though he provided assistance to the mother of a friend who distributed food to the needy. His contribution was to assist her in doing this in a park to himself and his friends.
In prison, Mr Hutchins completed a construction course, a first aid course and took some classes in computer use and year 11 school courses. He found it difficult to commit to these because he was regularly distracted by “friends” in prison. Mr Hutchins said that he had been intoxicated at the time of committing the personal injury offences. Nonetheless, he was offered the option of undertaking an alcohol and drug rehabilitation program but declined to accept this. He said that the offer came around the time when he would be eligible for parole and had been advised that he was likely to be deported to New Zealand. In those circumstances, he said, he saw no point in taking the program. He has been employed in prison work in various capacities such as in kitchen and cleaning work. For this, he was paid approximately $30 per week which was utilised on expenses such as phone calls. Mr Hutchins said that he had not been of good behaviour during all of his time in prison and referred to several episodes of fighting with other prisoners, most of which had not come to the attention of prison officers.
If permitted to remain in Australia, Mr Hutchins would like to obtain employment and care for A and the mother. He also expressed interest in completing his schooling. Ms Hutchins has advised him that she has a room for him but the mother and A have now relocated to New South Wales and he might stay with her and her parents. He has discussed this with the mother and they have agreed that they would prefer to obtain a place of their own. Mr Hutchins said that he had nothing to return to New Zealand for as he had not been in contact with his relatives there for over two years.
Other evidence
Mr Hutchins was under the care of psychiatrist, Dr Andrew Aboud, in 2012. He diagnosed posttraumatic stress disorder, depressed mood, substance abuse disorder (cannabis, amphetamines, alcohol) and possible alcohol abuse disorder.[20] Psychiatrist Dr Maria Andrzejewski saw Mr Hutchins on 12 April 2012 and concurred with the diagnosis of posttraumatic stress disorder.[21] No reports from them were in evidence though some clinical notes from Dr Aboud and Dr Andrzejewski were available. Mr Hutchins has seen psychologists from time to time while in prison. On 13 March 2012, Nick Smith, a private psychologist, completed a report in which he detailed a particularly traumatic childhood history of abuse and violence experienced by Mr Hutchins at the hands of family members. He noted that Mr Hutchins had witnessed the murder of a young cousin and had been involved in a serious motor vehicle accident. He identified these experiences as the source of Mr Hutchins’ psychiatric conditions. Mr Smith noted that fighting was Mr Hutchins’ “primary way of dealing with difficulty since the age of 8”.[22] Mr Smith wrote:
He reported reacting violently to minimal provocation, and even to seemingly minor precipitants such as seeing someone who looks like his father. The nature of this self-reported behaviour, and the details of the index offences indicate to me that an ongoing risk of violence exists, even in the absence of alcohol.
[20] See Exhibit 2, p. 14.
[21] See Exhibit 2, p. 16.
[22] See Exhibit 2, p. 12.
A clinical note by Dr Aboud, dated 27 March 2012, described Mr Hutchins as seeking assistance through obtaining medication because “[he] thought that [he] would start hurting people”.[23]
[23] See Exhibit 2, p. 15.
A report by a corrective services officer, dated 29 March 2011, noted that Mr Hutchins was required, as a condition of his probation, to attend an assessment interview with the Southport Probation and Parole District Office. The Officer reported that Mr Hutchins “presented as resistant to supervision and questioning” as demonstrated by his unwillingness to answer questions and minimal interest in engaging in the assessment process.[24]
[24] See Exhibit 2, pp. 92-93.
Reports concerning Mr Hutchins’ behaviour in prison advise that he was in breach of rules for being in possession of a cigarette lighter on 3 July 2012[25] and for fighting on 3 May 2012[26]. However, generally, his behaviour is described as being “to the required standard”.[27] A report, dated 19 July 2012, contains a recommendation that Mr Hutchins undertake the “Pathways: High Intensity Substance Abuse Program and Making Choices Program”.[28]
SUBMISSIONS
[25] See Exhibit 2, p. 42.
[26] See Exhibit 2, p. 36.
[27] See Exhibit 2, p. 33.
[28] See Exhibit 2, pp. 49-54.
Mr Sean Kikkert, for the respondent
Mr Kikkert submitted that the first primary consideration of protecting the Australian community weighed very heavily in favour of cancelling Mr Hutchins’ visa. He described Mr Hutchins as having engaged, from 2009 onwards, in serious violent conduct against people in vulnerable circumstances. The level and frequency of Mr Hutchins’ violence and his willingness to act in breach of court orders meant that the community needed to be protected from the harm he may cause the community. He noted that alcohol had been involved in the commission of offences by Mr Hutchins and yet he had declined to undertake an appropriate program in prison to assist his rehabilitation in that regard. Mr Kikkert submitted that there was a high likelihood that Mr Hutchins would re-offend on release from custody with serious potential consequences to members of the Australian community.
In relation to the second primary consideration, Mr Kikkert acknowledged that Mr Hutchins had ties with Ms Hutchins who is his only relative in Australia and noted that Mr Hutchins had described her as being ill with diabetes mellitus which is now well-managed. He also noted that Mr Hutchins had an association with and A and the mother and a wish for them to become a family unit if he were to remain in Australia. Again, he noted that there was no independent evidence in relation to the views of the mother or Ms Hutchins about the future and no independent evidence about Ms Hutchins’ health. Mr Kikkert submitted that Mr Hutchins had made very little contribution to the Australian community and that his criminal offending had occurred a short period after he came to Australia in 2009. In that regard, he submitted that only a small component of his formative years had been spent in Australia. He submitted that while the presence of some ties weighed against cancellation of the visa, this was lessened by the relative weakness of those ties and Mr Hutchins’ previous conduct.
Mr Kikkert conceded that the best interests of A would be served by Mr Hutchins remaining in Australia. However, he submitted that he has had little contact with her and had not established a parental relationship with her. He noted that Mr Hutchins’ intention was to form a family arrangement with the mother and A but submitted that the association between him and the mother was untested. He submitted that contact between them and Mr Hutchins could be continued in the future as it had in the past, which was by phone and other forms of remote communication. Mr Kikkert submitted that this third primary factor weighed against cancellation of the visa to some extent but that this was lessened by the seriousness of the risk posed by Mr Hutchins if he remained in Australia.
In relation to other considerations, Mr Kikkert again acknowledged the relationship between Mr Hutchins and his step-mother and noted his evidence that he contacts her by phone each week but that she does not visit him with any frequency because she finds it too upsetting. He conceded that Ms Hutchins was supportive of Mr Hutchins and that she would be emotionally affected by visa cancellation. The mother of A is an Australian citizen and Mr Hutchins’ evidence is that she would not travel to New Zealand if he were deported. Accordingly, Mr Kikkert acknowledged that this would be likely to have an impact on her. However, he noted the shortness of their relationship and submitted that it remained untested. Mr Kikkert submitted that there were no language or culture limitations to prevent Mr Hutchins returning to New Zealand and, while accepting that he had mental health problems, submitted that these would be the subject of appropriate treatment in New Zealand in the same way as they would in Australia. He noted that Mr Hutchins was otherwise in good health and young enough to obtain employment in New Zealand and obtain support from the many family members living in New Zealand.
Mr Kikkert submitted that the preferable decision, after weighing all of the relevant considerations, was that the Tribunal should exercise the discretion to cancel the visa.
Mr Hutchins
Mr Hutchins said that he was remorseful for his past criminal conduct but submitted that he should be permitted to remain in Australia as he now considered it to be his home. He has close friends here but was prepared to move on from them and to make a contribution to the Australian community. He believed that Australia offered him more opportunities than did New Zealand. He did not want A to grow up without her father and wanted to establish a family with A and the mother. He submitted that there was nothing for him in New Zealand and requested the opportunity that a second chance would give him by not cancelling his visa.
CONSIDERATON
Primary consideration: Protection of the Australian community
In relation to the first of the primary considerations, the Direction provides at cl 9.1:
9.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Of those factors, the matters applicable to Mr Hutchins are paras (a),(b),(d),(e),(f) and (g) in cl 9.1.1 of the Direction as well as those in cls 9.1.2(1)(a) and (b) thereof.
While the sentencing remarks in the District Court make no reference to the degree of seriousness involved in Mr Hutchins’ criminal conduct, the terms of imprisonment imposed do so in that, at the age of 18 years, he was sentenced to 5 years imprisonment.[29] The extent of the injuries inflicted by Mr Hutchins, particularly in relation to the offence of doing grievous bodily harm, require that his conduct be characterised as very serious indeed. In that regard, I note that the victim of that attack was in a coma for nine days and suffered brain damage; other victims suffered serious facial injuries. Each of those assaults was accompanied by the theft of property from the victims and was conducted by Mr Hutchins in the company of others and in the isolation provided by the early hours of the morning. While the victims may not meet the description of vulnerable members of the community, as set out in the Direction,[30] I am satisfied that they were in positions of vulnerability when assaulted. That includes the victim who suffered brain damage and, in so determining, I reject the version of the event given by Mr Hutchins in his evidence. This was that he was acting in the self-defence of his associate. That version was not given to the investigating police and did not appear in the court brief relating to the offence, as presented to the Court, and to which Mr Hutchins pleaded guilty.
[29] See cl 9.1.1(1)(e) of the Direction.
[30] See cl 9.1.1(1)(b) of the Direction.
Mr Hutchins’ involvement with the criminal justice system in Australia commenced with the unlicensed riding of a motorcycle in November 2009, just four months after he arrived in Australia for the final time. The remaining offences were then committed over the next 14 months before he was imprisoned in February 2011. That reflects a high frequency of offending. In addition, his criminal history reflects an escalation in the level of seriousness of his offending[31] from traffic matters on 26 December 2010, to the shopping centre offences on 28 December 2010, to the serious assaults and thefts on 16 January 2011 and to the even more serious assault and theft on 23 January 2011.
[31] See cl 9.1.1(1)(f) of the Direction.
The progression of Mr Hutchins’ serious offending ended with his arrest and imprisonment from which he has not yet been released. Apart from the prison environment, his capacity to remain offence-free has not been tested. Indeed, his conduct in prison, while generally of an acceptable standard, has not been without fault. He was in breach of rules in relation to possession of property and, on one occasion, for fighting. His evidence was that he had been involved in fights on other occasions. I have noted Mr Hutchins’ comment to Dr Aboud that he sought assistance because he thought that he “would start hurting people”. Further, Mr Smith described fighting as Mr Hutchins’ “primary way of dealing with difficulty since the age of 8”. Mr Hutchins’ propensity for violence was also noted in Mr Smith’s report where he described him as capable of “reacting violently to minimal provocation”. Mr Smith concluded that Mr Hutchins represented an “ongoing risk of violence, even in the absence of alcohol”.
Those factors leave me satisfied that there is a high likelihood that Mr Hutchins will engage in further criminal or other serious conduct if he were released into the Australia community. That risk is compounded by Mr Hutchins’ unwillingness to participate in the Pathways and Making Choices Programs recommended to him in prison. These would serve to assist him with alcohol and drug problems which have been diagnosed by Dr Aboud and which, in his evidence, he described as affecting him when he committed the offences in December 2010 and January 2011. There is no evidence that Mr Hutchins completed any other rehabilitation programs while he has been in prison.
Another aspect of Mr Hutchins offending has been his unwillingness to comply with court orders. A level of resistance to supervision and questioning during the assessment interview was reported by a corrective services officer in March 2011. That attitude was reflected in convictions for five breaches of bail conditions and a breach of probation. That lack of respect for authority in the past raises real issues about the capacity of Mr Hutchins to comply with any parole conditions that would be imposed upon him if he were released from prison in Australia.
There is no evidence to indicate that Mr Hutchins was given a formal warning or otherwise made aware about the consequences of offending in terms of his migration status in Australia. However, the Direction provides that an absence of a warning is not to be considered in his favour[32] and, regardless of any warning, the Principles make it clear that there is an expectation that non-citizens will be law-abiding, will respect Australia’s law enforcement framework and will not cause or threaten harm to individuals.[33]
[32] See cl 9.1.1(1)(i) of the Direction.
[33] See cl 6.3(1) of the Direction.
On consideration of those matters, I am satisfied that Mr Hutchins represents an unacceptable risk to members of the Australian community.[34]
[34] See cl 9.1.2(1)(a) and (b) of the Direction.
I am satisfied that Mr Hutchins has a substantial criminal record and does not pass the character test. This is reflected in his history, over a relatively short time-frame, of convictions, of violent conduct and of defying court orders. His record is such that there is an unacceptable risk that, once released from the constraints of custody, he will continue in the same manner as before. In accordance with the Principles in cl 6.3[35] and cl 9.1 of the Direction, the retention of his visa amounts to a significant and unacceptable risk to the Australian community.[36] This weighs very heavily in favour of the cancellation of his visa.
[35] In particular, note the terms of cl 6.3(1), (2), (3), (4) and (6) of the Direction.
[36] See ss 501(6)(d)(i) and (v) of the Act and cl 9.1.2(1) of the Direction.
Primary consideration: Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at cl 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Prior to being imprisoned in February 2011, Mr Hutchins had lived continuously in Australia for only 2½ years. During that period, he committed the offences noted above. Clearly, his offending commenced shortly after taking up continuous residence in Australia at 15 years of age. Indeed, he was disqualified, some four months later, from obtaining a driver licence for 18 months after committing a driving offence. Outside of prison, he has not undertaken any meaningful employment in Australia; he has played football; and he assisted in food distribution but only to himself and his friends. I am satisfied that he has made minimal contribution to the Australia community.
Some of Mr Hutchins’ formative years have been spent in Australia and this includes vacation periods before he took up continuous residence in 2009. However, the majority of those years were spent in New Zealand. Psychiatric reports in evidence confirm that Mr Hutchins has been diagnosed with psychiatric conditions for which treatment has been given. Significantly, the traumas described in the mental health reports make it clear that those conditions had their genesis in events of Mr Hutchins’ early childhood in New Zealand rather than in Australia. Further, the evidence of the psychologist described Mr Hutchins as having a propensity for fighting to resolve difficulties from some years before he came to Australia.
In assessing the second of the primary considerations, I am satisfied that less weight should accrue to his ties to Australia because of the relatively brief association he has had with Australia and the brief passage of time before he commenced offending. That balance is not improved by an assessment of his contribution to the community.
Mr Hutchins’ evidence was that his only family member in Australia is his aunt, Ms Hutchins. He has an association with the mother of A which, as submitted by Mr Kikkert, has not been tested by any period of cohabitation. The only evidence of their concern for or willingness to provide future assistance to Mr Hutchins comes from him. The absence of evidence from them, either orally or in the form of statements in relation to those matters, creates a barrier to a positive assessment of the strength and nature of their relationship to Mr Hutchins. Despite that, I accept that both Ms Hutchins and the mother of A would be negatively impacted to some extent by a decision to cancel Mr Hutchins’ visa. However, I have noted the evidence of Mr Hutchins that the relatively short period he has resided with his aunt in Australia has been characterised by periods of weeks and even months when she has ejected him because of his drug and alcohol usage. I have also noted that the mother of A now resides in New South Wales with A and her parents and it is not clear how Mr Hutchins will be able to give effect to his desire to establish a family relationship with them on release from prison. Mr Hutchins has a daughter with whom he has had minimal contact but, nonetheless, she represents a tie between him and the Australian community.
On balance, there has been no meaningful contribution by Mr Hutchins to the Australian community. There is evidence of some support for him from his aunt and, on his evidence, from the mother of A. In accordance with the Principles in cl 6.3[37] and cl 9.2 of the Direction, I am satisfied that the strength, duration and nature of ties to Australia weigh, to a minor degree, against cancelling his visa. However, I am also satisfied that this is lessened by the nature and effect of his criminal conduct.
[37] In particular, cls 6.3(1), (4) and (6).
Primary consideration: Best interests of minor children in Australia
In relation to the third of the primary considerations, the Direction provides at cl 9.3:
9.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Mr Hutchins’s daughter, A, is the only child of relevance under the third primary consideration. She was born while Mr Hutchins was in prison and is now 19 months old. He has seen her twice when the mother visited him, the last such occasion being some 12 months ago. Mr Hutchins described regular telephone contact with the mother and interchanges with A on those occasions. He has indicated a desire to develop a paternal relationship with A in the future. This would best be achieved if Mr Hutchins remained in Australia and, in that sense, the cancellation of his visa would not be in the best interests of A.
Despite that, when attaching weight to this primary consideration, I note that there has been minimal meaningful contact between Mr Hutchins and A and, based on my assessment of his propensity for violence, I have concluded that there is a real risk that he will commit further offences. I am satisfied that raises the potential for A to be exposed to that behaviour and, in that, it is significant that he was observed to have used inappropriate language and violence in the presence of children during the commission of the offences on 28 December 2010.
Because of the unacceptable risk of harm to and the uncertainty surrounding future arrangements for A and in accordance with the Principles in cl 6.3[38] and cl 9.3 of the Direction, I am satisfied that the consideration of A’s best interests weigh neutrally on the exercise of discretion to cancel Mr Hutchins’ visa.[39]
[38] In particular cl 6.3(1), (2) (3) and (6) of the Direction.
[39] See Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.
Other considerations
A non-exhaustive list of other considerations is provided in cl 10 of the Direction.[40]
[40] See para 9 (above). No submissions were made in respect of cl 10(1) (b) or (c) of the Direction.
No evidence has been provided by Ms Hutchins or the mother of A from which to glean the effect of the cancellation of Mr Hutchins’ visa on them. He has indicated that Ms Hutchins has suffered from diabetes mellitus which is now stabilised and that Ms Hutchins has a room in which he may reside if released from prison in Australia. They have chosen to maintain contact with Mr Hutchins for most of his term of imprisonment by means other than visitations. There is no evidence that such forms of contact could not continue in future if Mr Hutchins is in New Zealand, thereby reducing the effect of visa cancellation.
There is no evidence before me that the decision in relation to Mr Hutchins’ visa would have any impact on Australian business interests or on any of the victims of his criminal conduct. Mr Hutchins has many family members in New Zealand. These include his father, his sister, several half-brothers, a half-sister as well as aunts, uncles and cousins. I am satisfied that such an array of potential family support would assist in the removal of any impediment that Mr Hutchins may face if he were removed to New Zealand. Mr Hutchins has diagnosed psychiatric conditions for which he may well require medical attention in the future. However, that is a matter which would apply equally if he remained in Australia and there is no evidence that such assistance would be available to any lesser extent in New Zealand as compared with the position in Australia. Mr Hutchins is still young and has expressed a desire to obtain employment and also to complete his schooling. There is no evidence that such opportunities are available to any lesser extent in New Zealand as compared to Australia. I am satisfied that there are no impediments of significance facing Mr Hutchins on return to New Zealand such that he would not be able to establish himself there and maintain a standard of living typically enjoyed by New Zealand citizens in that country.
In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the other considerations weigh in favour of cancellation of Mr Hutchins’ visa.
CONCLUSION
Having considered the primary considerations and the other relevant considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether or not those considerations, on balance, favour cancellation of the visa.[41]
[41] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in this case. The nature and frequency of the applicant’s criminal and his otherwise violent conduct, and the likelihood of his re-offending, is in conflict with an objective of the Act, that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[42] I am satisfied that the first primary consideration weighs heavily in favour of cancellation of the visa; that the second primary consideration weighs in favour of not cancelling the visa; that the third primary consideration weighs neutrally on the issue of visa cancellation; and that the other considerations weigh in favour of such cancellation. On balance, I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that the applicant’s visa be cancelled pursuant to s 501(2) of the Act.
[42] See cl 6.2 of the Direction.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 60 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
....................[Sgd]..............................................
Associate
Dated 27 May 2013
Date of hearing 20 May 2013 Applicant In person Solicitor for the Respondent Mr Sean Kikkert, Departmental Advocate
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