SAVAGE And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 718
•18 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3137
GENERAL ADMINISTRATIVE DIVISION ) Re WARREN JOHN SAVAGE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date18 October 2011
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY, Subclass 444 Special Category (Temporary) visa – applicant residing in Australia since 2002 – cancellation of visa – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No 41 – primary and other considerations – serious offences – risk that conduct may be repeated – prospects of rehabilitation – decision under review affirmed.
Migration Act 1958 (Cth) ss 500(6J), 501(2), 501(6)(a), 501(7)(c), 501G
Ministerial Direction No 41
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Re Tuatara and Minister for Immigration and Citizenship [2010] AATA 496
Tuatara v Minister for Immigration and Citizenship [2010] FCA 1324
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Jones v Dunkel (1959) 101 CLR 298
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Green v Minister for Immigration and Citizenship [2008] FCA 125REASONS FOR DECISION
18 October 2011 Senior Member R W Dunne introduction
1.The applicant in this case is Mr Warren John Savage. He held a Class TY, Subclass 444 Special Category (Temporary) visa. On 18 July 2011, a delegate of the Minister for Immigration and Citizenship (“respondent”) decided to cancel his visa on the ground that he did not pass the character test. Mr Savage has applied to this Tribunal for review of the delegate’s decision.
2.At the hearing, Mr Savage represented himself. The Tribunal had extensively sought pro bono representation for him through JusticeNet, but the attempts eventually proved unsuccessful. Mr P d’Assumpcao (from the office of the Australian Government Solicitor) appeared on behalf of the respondent. The G documents were lodged with the Tribunal pursuant to s 501G of the Migration Act 1958 (Cth) (“Act”). The same documents, prepared and numerically paginated by the respondent, were admitted into evidence as Exhibit R1, together with the following exhibits:
·character reference of Maurice Bobridge dated 10 September 2011 (Exhibit A1);
·character reference of Kimberley Sadler dated 10 September 2001 (Exhibit A2);
·Families SA documents printed on 23 September 2011 (Exhibit R2); and
·Department of Correctional Services – Incident Reports and Offender Case Notes (Exhibit R3).
issue before the tribunal
3.Mr Savage does not dispute that he has a substantial criminal record and does not pass the character test. The only issue before me is whether I should exercise the discretion conferred by s 501(2) of the Act to cancel his visa.
relevant law and policy
4.Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if he or she has a substantial criminal record. 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.On 10 July 2009, Mr Savage received a sentence of two years imprisonment for seven criminal trespass and property offences. In addition, he was convicted for a number of other property offences. He had a non-parole period of ten months and was released on parole on 24 November 2009. However, he offended shortly after release and was taken back into custody on 18 February 2010. Thus, he does not pass the character test. It was therefore open to the respondent to cancel his visa. In exercising this discretion, the decision-maker must apply Ministerial Direction No 41 – Visa Refusal and Cancellation under s 501 of the Act (“Direction”). The Direction provides for the manner of exercise of the Tribunal’s function under the Act.
background and evidence of applicant
6.The material facts are largely not in dispute. I make the following findings from the documents before me and from the evidence of Mr Savage.
7.Mr Savage is a 25 year old New Zealand citizen. He first arrived in Australia on 27 December 1997 and departed one month later on 31 January 1998. He re-entered Australia on 10 September 2001 and departed again on 17 September 2001. He re-entered Australia again, at the age of 16, on 20 August 2002 and has not departed since. He was granted the visa on his most recent arrival, 20 August 2002. His father died when he was 11 years of age as a result of a workplace accident and he was expelled from school at the age of 15 for fighting.
8.Mr Savage has a 7 year old son from a previous relationship with Ms Lauren Pinnington. For sensitivity reasons I shall refer to the son as (T). Initially, it was understood that (T) was living with his mother, Ms Pinnington, in Murray Bridge, South Australia. Mr Savage separated from Ms Pinnington in 2008, when (T) was 4 years old. He was convicted for an aggravated assault against Ms Pinnington on 17 November 2008. He applied for parole on 30 August 2010. In his application for parole he advised the Parole Board that a restraining order was still in place in relation to Ms Pinnington. On 16 March 2011, the Parole Board refused to approve Mr Savage’s release on parole.
9.It appears Mr Savage’s offending behaviour commenced in mid-2008. He committed the aggravated assault on Ms Pinnington on 2 July 2008 and a number of trespass and property offences throughout the second half of 2008, in January 2009 and in January/February 2010. The following is a table of offences and convictions prepared by Mr d’Assumpcao, which Mr Savage did not dispute:
Table of Convictions
No
Date of Offence
Date of Conviction
Offence Details
Court
Outcome
1
2 July 2008
17 November 2008
Aggravated Assault Against Own Child or Spouse (No weapon)
MBMC
Convicted: Imprisonment 3 months, sentence suspended bond $200 to be of good behaviour for 2 years, probation for 12 months.
2
Date unknown
17 November 2008
Damage property (2 charges)
MBMC
Convicted: No penalty imposed
3
12 October 2008
17 November 2008
Fail for comply with Bail Granted Agreement (6 charges)
MBMC
4
7-10 June 2008
10 July 2009
Serious Criminal Trespass (non-residential)
AMC
Convicted: 3
Years reduced to 2 for guilty pleas
5
7-10 June 2008
10 July 2009
Dishonestly Take Property Without Owner’s Consent (scales, copper offcuts, copper, brass and four tyres valued at $8,400 stolen)
AMC
6
12-15 June 2008
10 July 2009
Serious Criminal Trespass (non-residential)
AMC
7
12-15 June 2008
10 July 2009
Dishonestly Take Property Without Owner’s Consent (exhaust fan, electrical wiring and copper tubing valued at $2,200)
AMC
8
30 July 2008
10 July 2009
Damage Property (kick and punch car)
AMC
9
19-13 September 2008
10 July 2009
Serious Criminal Trespass (non-residential)
AMC
10
10-13 September 2008
10 July 2009
Dishonestly Take Property Without Owner’s Consent (boroscope valued at $350)
AMC
11
30 November 2008
10 July 2009
Dishonestly Take Property Without Owner’s Consent (bicycle valued at $200)
AMC
Convicted: 6 weeks imprisonment reduced to 1 month for guilty plea
12
20 December 2008
10 July 2009
Dishonestly Take Property Without Owner’s Consent (clothing items)
AMC
Convicted: 6
Weeks imprisonment reduced to 1 month for guilty plea
13
20 December 2008
10 July 2009
Breach of bail (failed to sign in)
AMC
Convicted: Discharged without penalty
14
25 January 2009
10 July 2009
Serious Criminal Trespass (residential)
AMC
Convicted: 15 months imprisonment reduced to 10 months
15
25 January 2009
10 July 2009
Dishonestly Take Property Without Owner’s Consent (alcohol, clothes and coins valued at $1,600)
AMC
16
10 July 2009
Breach of bond
AMC
Order of suspension revoked: 3 months to be served
17
15 January 2010
24 May 2010
Dishonestly Take Property Without Owner’s Consent
MBMC
Convicted:
Imprisonment 3 months to run cumulative with revoked parole. Total sentence: 2 years, 6 months and 9 days. Non parole period 9 months.
18
28 January 2010
24 May 2010
Dishonestly Take Property Without Owner’s Consent
MBMC
19
1 February 2010
24 May 2010
Fail to Comply with Restraining or Foreign Restraining Order
MBMC
20
1 February 2010
24 May 2010
Damage Building or Motor Vehicle
MBMC
21
9 February 2010
24 May 2010
Fail to Comply with Restraining or Foreign Restraining Order
MBMC
22
9 February 2010
24 May 2010
Damage Building or Motor Vehicle
MBMC
23
9 February 2010
24 May 2010
Damage Building or Motor Vehicle
MBMC
MBMC = Murray Bridge Magistrates Court
AMC = Adelaide Magistrates Court
10.The following is a table outlining the number and nature of offences committed by Mr Savage, extracted from the above table, which Mr Savage did not dispute:
NATURE AND NUMBER OF OFFENCES (CONVICTIONS ONLY)
CATEGORY
OFFENCE TYPE
NUMBER
Violence
Assault
1
Breach of Court Order
Bail (including 1 conviction comprising 6 charges)
2
Restraining order
2
Bond
1
Offences against the Community
Serious criminal trespass (non residential)
3
Serious criminal trespass (residential)
1
Damage property (including 1 conviction comprising 2 charges)
5
Theft
Property
8
Total
23
11.On 10 September 2009, the respondent notified Mr Savage that his visa would be liable for cancellation on character grounds. On 23 October 2009, the respondent sent a letter to Mr Savage notifying him of its decision not to cancel his visa at that time. The letter included a formal warning that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test in the future. Disregard of the warning would weigh heavily against him if his case “is reconsidered”. When released on parole on 24 November 2009, he lived with a friend and others in a house at Murray Bridge. Later, he breached his parole conditions and was taken back into custody on 18 February 2010. On 3 November 2010, while at Mobilong Prison, he threatened to assault a prison education officer and was transferred to Port Augusta Prison. While in Port Augusta Prison, he assaulted another prisoner, within the medium security units, and as a result he was moved to the higher security area.
12.On 10 February 2011, the respondent sent a Notice of Intention to Consider Cancellation of a visa (“NOICC”) to Mr Savage. He requested an extension of time to respond to the NOICC as he was awaiting letters of support from family members. An extension was granted and he responded to the NOICC with a written submission which did not include letters of support from his family.
13.In giving his evidence and after having been given an outline of the Direction by me, Mr Savage said that he wanted to remain in Australia to care for (T). It was his intention to apply for custody of (T) in the Family Court because his mother (Ms Pinnington) was struggling with him. He asked me to consider the traumatic effect his removal from Australia would have on (T).
14.When cross-examined, Mr Savage said that it had been difficult in the past for him to abstain from offending because of his drug abuse. He had undertaken anger management courses before going to prison in 2010, and literacy and numeracy education whilst in prison. When questioned further, he could not remember which anger management courses were involved. When asked what he had learnt from them he replied, “count to ten, then walk away”. There were also courses in prison on alcohol, drugs and domestic violence. He had not enrolled for any of these courses because they were not part of his “prison plan”. In the past, he had been drinking alcohol for many years, he had been taking cannabis since he was 14 and methamphetamine intravenously since he was 16. He had taken non-prescription drugs in prison and had been taking Buprenorphine regularly. He had last taken Buprenorphine about a month ago.
15.Mr Savage was questioned by Mr d’Assumpcao about certain of his offences. He said he had been head-butted by Ms Pinnington in July 2008 and he had simply “stepped back”. He was charged, received a suspended sentence and a bond to be on good behaviour. In June 2008, he had with others stolen property from a scrap metal yard. The property was sold and he purchased drugs. Again, late in July 2008 he had an argument in a car park with Ms Pinnington. He wanted to see (T) and when his partner resisted he kicked and punched her car. In September 2008, he had with others stolen property from a RSL club. He was on amphetamines at the time and needed to sell the property for drugs. In January 2009, he and six others had broken into a residence and taken clothes, coins and alcohol. He had taken the alcohol and the others had taken the clothes.
16.After he was released on parole in November 2009, Mr Savage said he stole again. He said things were not going well for him, there was a problem in gaining access to (T) and he was back on drugs. In February 2010, he failed on two occasions to comply with the restraining order obtained by Ms Pinnington. On the first occasion she had asked him to pick up (T). On the second occasion, when he went to where Ms Pinnington was living, she kept (T) inside and became verbally abusive. He said he tried to kick the door in. Ms Pinnington’s boyfriend had his hands around (T)’s neck and his son “was terrified”. Mr d’Assumpcao referred Mr Savage to various pages of the Families SA documents (Exhibit R2). He said that Ms Pinnington had been verbally abusive towards (T) and he was now living with Ms Pinnington’s brother. Ms Pinnington’s mother said that there were problems with her daughter and Mr Savage described her as a “junkie”. If he was released into the community he would be seeking custody of (T). He said his referee in Exhibit A1 (Mr Bobridge) wanted him and (T) to live with him after his parole.
17.Mr d’Assumpcao referred Mr Savage to various extracts in the Department of Correctional Services Incident Reports (Exhibit R3). In one extract where he had threatened to “punch out” his prison education officer, Mr Savage said the officer had used provocative language and what he said had happened was a lie. In another extract Mr Savage said he had been spoken down to in the kitchen area by another prisoner. He hit the other prisoner, they traded blows and shook hands afterwards.
18.When questioned about his arrangements for employment if released, Mr Savage said he would first work at chicken sheds, collecting eggs. He would then get a better job. To provide for (T), he would work with Mr Bobridge, who had a three bedroom home with his partner. He said he would not be seeking custody of (T) until he had a job. As to the potential custody question with Ms Pinnington, she was out of work and he would agitate the issue with Families SA.
consideration
Ministerial Direction No 41
19.In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh. I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286.
20.Paragraph 10(1) of the Direction provides for four primary considerations that must be considered in deciding whether to cancel a person’s visa. All of these primary considerations are relevant in the present matter. By virtue of paragraph 11(1) of the Direction, certain other considerations, although not primary, may be relevant, and if so, must be considered in deciding whether to cancel a visa. Paragraph 11(2) provides in effect that it is appropriate that such other considerations must be taken into account, but generally they should be given less weight than that given to primary considerations. I shall consider the four primary considerations and the other considerations that are relevant to the present proceedings, in turn.
21.As the Direction is a statutory instrument, it should be interpreted so as to give effect to the objectives of the Act and in accordance with ordinary principles of statutory interpretation. I must begin with a consideration of the ordinary meaning of the relevant words of the Direction read in their context and having regard to their apparent purpose and to the purposes of the Act.
22.The objectives of the Direction are set out in paragraph 5.1. This paragraph refers to the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and states that the Government is especially mindful to protect the safety of the community’s more vulnerable members.
23.The following paragraphs appear as part of paragraph 5.2, under the heading “General Guidance”:
“5.2
…
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b)the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
First primary consideration – protection of the Australian community
24.This requires due consideration to be given to the Government’s objectives as set out in paragraph 5.1 of the Direction. Paragraph 10.1 provides, in effect, that the factors relevant to assessing the level of risk of harm to the community include two factors, namely: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated.
First factor re protection of Australian community – the seriousness and nature of the conduct (paragraph 10.1.1)
25.Paragraph 10.1.1(1) of the Direction provides relevantly that crimes involving violence are of special concern to the welfare and safety of the Australian community, and such crimes, particularly against vulnerable persons such as minors, are especially abhorrent to the whole community. The Direction provides examples of offences and conduct that are considered serious. Amongst these are grievous bodily harm, reckless injury, assault and aggravated assault (including abduction): paragraph 10.1.1(2)(d); robbery: paragraph 10.1.1(2)(e); and serious theft: paragraph 10.1.1(2)(m). Clearly these paragraphs apply to the offences committed by Mr Savage and to his conduct at the time of the offences.
26.The offence of aggravated assault by Mr Savage against (T)’s mother (Ms Pinnington) on 2 July 2008 would be of special concern to the welfare and safety of the Australian community. Mr Savage said that she head butted him and he simply stepped back. Having observed him at the hearing, I find this difficult to believe. He appeared to me at times to be an angry man and he would be capable of quickly losing his temper. Moreover, there were other incidents involving Ms Pinnington where, on the evidence, Mr Savage’s conduct became violent.
27.Paragraph 10.1.1(3) of the Direction states that the sentence imposed for a crime is considered indicative of the seriousness of the offender’s conduct against the community. In respect of the 13 offences considered in the Adelaide Magistrates Court on 10 July 2009, the Court imposed a total sentence of 3 years and 3 months. This was reduced to approximately 2 years after taking into account guilty pleas. Nevertheless, the sentence reflects the seriousness of the applicant’s conduct. The offences are not specifically listed as serious offences, but I note that the list of offences contained in the Direction is not exhaustive. Regard must be given to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. The respondent provided a table outlining the applicant’s convictions (see paragraph 9 above). I note that the applicant was convicted of 23 recorded offences in the 10 month period, July 2008 to 24 January 2009 and 25 November 2009 to 9 February 2010. He was incarcerated for the periods 25 January 2009 to 24 November 2009 and 18 February 2010 to date. The respondent also provided a table outlining the nature of offences committed by the applicant (see paragraph 10 above). I note that the type of offences committed by the applicant, for which he was convicted, were violence, breach of court orders, theft and offences against the community, including serious criminal trespass.
Second factor re protection of Australian community – the risk that the conduct may be repeated (paragraph 10.1.2)
28.With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of the Direction requires that consideration be given to Mr Savage’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including parole, bail and other relevant undertakings or conditions imposed by the Courts. I have already referred to Mr Savage’s history of convictions and that he was convicted of 23 offences committed during a 10 month period. These offences were mainly drug related. In fact, on his own admission, he was taking Buprenorphine, without a prescription, up to a month before the hearing. As to whether the conduct may be repeated, Mr Savage has been in prison since 18 February 2010 and has not been part of the Australian community. However, I note that in November 2010 he threatened a prison education officer whilst at Mobilong Prison and was transferred to Port Augusta Prison. At Post Augusta Prison, he assaulted another prisoner and was removed to the high security area of that prison. There is, therefore, evidence that, although he was in a controlled environment, there is an increased risk of re-offending.
29.There is no evidence to suggest that Mr Savage has rehabilitated. He said he undertook some courses while in prison, but was unable to give details of what he learnt from them or produce any documents relating to his participation. There appears to be no real prospects of further rehabilitation.
30.On 24 November 2009, he was released on parole and on 18 February 2010, within 3 months of being released, he was taken back into custody having breached his parole conditions and committing similar offences to those for which he was originally imprisoned. This was noted by Ms C Deland SM in the Adelaide Magistrates Court on 24 May 2010 when she said:
“It is unfortunate you have breached your parole and breached your parole for similar offences for which you were actually gaoled in the first place.”
31.I note that, following his application on 30 August 2010, the Parole Board refused to approve Mr Savage’s release on parole. The letter from the Parole Board stated:
“To the extent that Savage has made any plans for his release, they are the same as those which existed when he was released on 24 November 2009. Savage has not done anything to earn the right to early release on parole … He has no firm arrangement with respect to employment. He will have no income. He proposes again to reside with Ms Koolmatrie. In those circumstances on his last release Savage abused illicit and prescription drugs, and re-offended.
Further, Savage has not done anything to earn the right to early release on parole. The Pre-Release report notes as follows:-
‘Mr Savage displayed a poor attitude towards staff during this period of incarceration attracting a number of incidents related to poor behaviour. Prison case notes describe Mr Savage to be insolent in his demeanour, rude and abrasive with staff. He has received numerous warnings for regulation breaches including improper dress code and poor attendance at work and education. He was provided with many an opportunity to improve his attitude and informed on 11/10/10 that failure to do so may result in a prison transfer. Nonetheless he was charged on 3/11/10 for threatening to assault the Prison Education Officer … He was transferred to Yatala Labour Prison on 4/11/10 where again, prison case notes read of an argumentative, aggressive and poor attitude towards officers. Mr Savage is now incarcerated at Port Augusta Prison.’
Having regard to the matters prescribed by sub-sections 67(3A) and (4) of the Correctional Services Act 1982, the Parole Board is not prepared to approve Savage’s release on parole at the present time. His application for release is refused….
In the meantime, the Parole Board requires that his behaviour and attitude improve significantly and that he abstain from illicit drugs and prescription drugs for which he does not have a prescription. Compliance should be tested by frequent urinalysis.”
32.On 16 March 2011, the Parole Board refused to approve Mr Savage’s release on parole, for the reasons set out in paragraph 31 above. It seems clear from the comments in its letter that the Parole Board considered that Mr Savage had done little to rehabilitate and could reoffend, if released.
33.In my view, the risk that Mr Savage poses to the Australian community is high. I say this noting that, in Minister for Immigration and Citizenship v Obele [2010] FCA 1445, Katzmann J said of the risk of re-offending that paragraphs 5.2(2) and 10.1(2) of the Direction led to a requirement that the potential harm to the community is to be assessed in the light of both the probability of the harm occurring and the nature of the harm.
Second primary consideration – whether the applicant was a minor when he began living in Australia (paragraph 10.2)
34. This consideration provides relevantly as follows:
“(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
35.Mr Savage arrived in Australia, on a permanent basis, on 20 August 2002 at the age of 16 as a minor. This primary consideration does not especially assist him. Section 10.2(2) states that less weight should be given if a person began living in Australia as a minor but was close to attaining adulthood at that time. Mr Savage falls within that provision.
36.I consider that this second primary consideration should not be assessed in Mr Savage’s favour. It should be treated as a neutral consideration.
Third primary consideration – the length of time that a person has been ordinarily resident (paragraph 10.3)
37. Paragraph 10.3(1) of the Direction provides as follows:
“(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
38.Mr Savage has resided in Australia for nine years and has been incarcerated for approximately two of those nine years. He committed his first offence for which he was convicted six years after his arrival in Australia, at the age of 22. Section 10.3(1) provides that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity. However, in Rosson v Minister for Immigration and Citizenship [2011] FCA 194, Rares J said (at paragraph 23):
“Nor do I accept Mr Rosson’s argument that cl 10.3 prevented the tribunal from giving unfavourable consideration to the length of time Mr Rosson had been ordinarily resident in Australia prior to his commencing to engage in his criminal activity or other relevant conduct for the purposes of cl 10(1)(c). There does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act. …”[emphasis added]
39.I find that this third consideration does not assist Mr Savage’s case.
Fourth primary consideration – relevant international obligations (paragraph 10.4)
40.Paragraph 10.4 of the Direction provides:
“10.4 International obligations
(1)Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
(2)Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.
Note:Notwithstanding international obligations, the power to refuse to grant a visa or cancel a visa must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.”
41.On the evidence, I find that the cancellation of Mr Savage’s visa would not be contrary to Australia’s non-refoulement obligations.
Fourth primary consideration – relevant international obligations – best interests of the child (paragraph 10.4.1)
42. Paragraph 10.4.1 of the Direction relevantly states, in part:
“(1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
…
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. ….”
43.Mr Savage has one child, (T), who is now seven years old. In the personal details form provided to the respondent dated 23 March 2011, Mr Savage states that he speaks to his son on the telephone every day, that his son visits every now and then and that he plans to have his son staying with him at weekends when he gets released. He states in his supporting letter:
“I love my son so much and I can’t begin to think how much it would effect [sic] him if I was to be removed from this country he needs both of his parents in his life, his mother is struggling with him and I need to be here to do my part in parenting him which is my number 1 priority when released as well as never returning to prison again.”
44.In paragraph 10.4.1(4), it is presumed that a child’s best interests will be served if the child remains with its parents. However, the paragraph goes on to state that there are factors which may indicate that the child’s best interests are served by separation from the parent. These factors include, but are not limited to:
(a) any evidence that the parent has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the parent’s conduct.
45.In Mr Savage’s case, he has a conviction for an aggravated assault against Ms Pinnington. The offence took place on 2 July 2008 when (T) was four years of age. Then, on 30 July 2008, he had an argument in a car park with Ms Pinnington. He said he wanted to see (T) and when Ms Pinnington resisted, he kicked and punched her car. Although there is no detailed evidence about these incidents and no statements have been provided by Ms Pinnington, it is possible that Mr Savage’s violence towards his son’s mother may have negatively impacted on the child. On this, I note from the Families SA reports (Exhibit R2, page 11) that there are incidents of (T) “frequently abusing other children, using language like, … and … and for head butting children”. Given these incidents and his mother’s apparent circumstances, it may be that the best interests of (T) are that he be cared for by other family members or placed into foster care.
46. Paragraph 10.4.1(5) of the Direction sets out a number of the factors to be considered in ascertaining the best interests of Mr Savage’s son. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship, including the number and length of any separations and the reason(s) for the separation; the extent to which the person is likely to play a full parental role up to the child’s 18th birthday; the likely effect that any separation from the person would have on the child; and the existence of other persons who already fulfil the parental role in relation to the child.
47.In relation to the factors in paragraph 10.4.1(5), I make the following observations:
(a) The nature of the relationship: In Mr Savage’s case, the relationship is that of father and son. However, sub-paragraph 10.4.1(5)(a) examples a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with the child. Mr Savage has been incarcerated for approximately two years, since his son was five years old. Other than what is provided in paragraph 43 above, Mr Savage has provided little evidence regarding his ongoing personal relationship with his son.
I note that, in Re Tuatara and Minister for Immigration and Citizenship [2010] AATA 496, the Tribunal said (at paragraph 61):
“The Direction acknowledges that it is generally presumed, under Australian law, that a child’s best interests are served by remaining with its parents. However, this presumption is more than abstract principle. There must be some basis on which a child’s best interests can be determined it can be said that contact with a parent is in its best interests.”
The decision of the Tribunal in Re Tuatara was appealed to the Federal Court. In the appeal (Tuatara v Minister for Immigration and Citizenship [2010] FCA 1324), Edmonds J agreed with the Tribunal. He said (at paragraphs 46-47):
“46. At [61] of the Tribunal’s reasons, the Tribunal recorded that the Direction acknowledges that it is generally presumed, under Australian law, that a child’s best interests are served by remaining with its parents. The Tribunal did not suggest that it regarded the presumption as having been rebutted or displaced but observed that the presumption ‘is more than [an] abstract principle’. Its conclusion about the case was that no other considerations (including the best interests of the children) ‘outweighed the unacceptable risk of harm’ (at [74]). When (at [61]) the Tribunal remarked on the absence of ‘significant evidence as to [the] best interests’ of the children, it was referring to what it perceived as a lack of material to persuade it that the cancellation of the applicant’s visa would have a significant adverse effect on the interests of the children…..
47. The Tribunal’s approach, so understood, did not involve any error; nor did it invert the inquiry that was required by the presumption in cl 10.4.1(4) of the Direction. Indeed, the Tribunal’s approach is contemplated and mandated by the first three factors in cl 10.4.1(5) which are to be considered in considering the best interests of the child, namely:
‘(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c) the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday …”
Applying what I see to be the ratio in Re Tuatara and on appeal in Tuatara, there would have to be significant weight in the best interests of the child consideration in Mr Savage’s case to outweigh the unacceptable risk of harm.
(b) The duration of the relationship: As indicated in paragraph 43 above, (T) only visits Mr Savage in prison every now and then and, on the evidence, there has been no regular physical contact with his son.
(c) Likely full parental role up to 18th birthday: Mr Savage said that Ms Pinnington has struggled with (T) and that she has been verbally abusive towards him. This has been confirmed in the reports from Families SA (Exhibit R2, pages 6-8). According to Mr Savage, (T) is now living with Ms Pinnington’s brother. He has said that, if he was released into the community, he would be seeking custody of (T). I infer from this that he would wish to play a parental role in his son’s upbringing up to his 18th birthday. Whether this can occur will be dependent upon the outcome of these proceedings, any proceedings for custody in the Family Court and whether he is able to abstain from drug and alcohol use and not re-offend.
(d) The likely effect of separation: On his evidence, which has not been substantiated by Ms Pinnington or by members of his family living in Australia or New Zealand, Mr Savage has had limited contact with (T) since mid-2008 when he separated from Ms Pinnington. Based on the reports provided by Families SA and made early in 2010, Ms Pinnington was seen berating (T) at his school in front of others using obscene language to him. The reports suggest that the mother’s behaviour and language is reflected in (T)’s language and behaviour (Exhibit R2, pages 10-11). As already mentioned, (T) has frequently abused other children, using obscene language and violent conduct towards them. Given these serious circumstances and Mr Savage’s history of drug and alcohol abuse and violence towards (T)’s mother, on balance, I believe any separation from Mr Savage would have little effect on his son.
(e) The existence of others who already fulfil a parental role: As mentioned in (c) above, I understand (T) is presently being cared for by his uncle, Ms Pinnington’s brother. Moreover, in an incident report of the Department for Correctional Services dated 21 January 2011 (Exhibit R3, page 13), Mr Savage informed his social worker that (T) was being cared for in New Zealand by his mother. There is no evidence as to whether this is an ongoing or one-off arrangement, or evidence as to how long (T) was cared for by his paternal grandmother. There was also evidence to suggest that (T) had been cared for by his maternal grandmother.
Given the present circumstances that appear to exist in relation to (T)’s care and the uncertainty relating to possible future custody arrangements, in my view, the best interests of (T) would favour non-cancellation of Mr Savage’s visa. However, having said this, it is also my view that this consideration cannot be given a great deal of weight.
48.The hearing of this matter was originally listed for 22 and 23 September 2011. However, it was rescheduled for 4 and 5 October 2011 when it was understood that JusticeNet SA would be able to arrange pro bono legal representation for Mr Savage on those days. However, JusticeNet SA subsequently advised that legal representation could not be arranged and the hearing proceeded as rescheduled. JusticeNet SA also advised that it would arrange for written submissions to be provided to the Tribunal on behalf of the applicant on the second day of the hearing. On 4 October 2011, it became apparent that the hearing would not proceed beyond one day. JusticeNet SA’s written submissions were sought and obtained that day and Mr d’Assumpcao was granted leave to file written submissions on whether the JusticeNet SA submissions should be accepted and/or whether the Tribunal should not have regard to them as they were filed outside the time limit prescribed by s 500(6J) of the Act. Mr d’Assumpcao submitted that JusticeNet SA’s submissions were a “document” (pursuant to s 25 of the Acts Interpretation Act 1901 (Cth) and were caught by s 500(6J). They were not provided within the requisite time frame and therefore the Tribunal must not have regard to them.
49.In Re Tuatara (supra), the Tribunal (citing Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 25 per Gray J), when considering a statement of facts, issues and contentions filed by the applicant outside the time limit in s 500(6J), held that the section did not apply to the statement. The statement was not evidence, but a summary of the case and the submissions intended to be made out by the applicant after producing the necessary evidence and submissions to back up those claims. I have reviewed the decision of the Tribunal in Re Tuatara and, in applying that decision, I find that s 500(6J) does not apply to the written submissions of JusticeNet SA, which I can have regard to. Having said this, the JusticeNet SA submissions are of little assistance to me. They identify issues that are already being considered in these reasons and do not have regard to Mr Savage’s oral evidence given at the hearing. They do not add to the evidence and information already before me.
Other considerations (paragraph 11)
50.Paragraph 11 of the Direction contains a non-exhaustive list of other considerations that are not the primary considerations but, under paragraph 11(1), may be relevant, and if so, must be considered. Paragraph 11(2) provides:
“It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.”
51.Of these other considerations, the following matters are relevant in Mr Savage’s case:
(a) Family ties and relationships (paragraph 11(3)(a)(i)): Mr Savage’s closest family ties (his mother, brother and sister) live in New Zealand. However, he has six uncles, six aunts, four nieces and 10 cousins in Australia. As already mentioned, when replying to the NOICC he requested an extension of time to respond on the ground that he was awaiting letters of support from family members. When he did respond to the NOICC, his response did not include letters of support from any of the members of his family, whether in New Zealand or in Australia. The respondent submitted that it was appropriate for an inference of the kind identified in Jones v Dunkel (1959) 101 CLR 298 to be drawn in this case (see Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124 at [91] and [111]; contra Green v Minister for Immigration and Citizenship [2008] FCA 125 ). I agree with this submission. In the circumstances, I infer from Mr Savage’s failure to call members of his family who reside in Australia (such as any of his six uncles and aunts and other relatives who reside here) that their evidence, whether oral or in writing, would not assist his case.
Mr Savage did, however, receive written character references from his friends, Mr Maurice Bobridge and Ms Kimberley Sadler. When asked why Mr Bobridge and/or Ms Sadler had not appeared at the hearing as referees, Mr Savage said that he was unaware that they could do so. Given the time remaining for the hearing and the giving of my decision in writing, I indicated to Mr Savage that, from a timing perspective, it was no longer possible to arrange for Mr Bobridge and/or Ms Sadler to appear before the Tribunal. Given all the circumstances, I find that the cancellation of Mr Savage’s visa is unlikely to entail disruption to his family ties, particularly his close family ties in New Zealand.
(b) Family ties and extent of any genuine marital relationships (paragraph 11(3)(a)(ii)): Mr Savage was in a relationship with Ms Pinnington, (T)’s mother, but separated from her in 2008. He was convicted for assaulting her in November 2008. A restraining order was subsequently imposed against him from contacting Ms Pinnington, and I understand it is still in place. The order was breached on two occasions. The existence of the restraining order would support a decision to cancel his visa.
(c) Any links to the country to which Mr Savage would be removed (paragraph 11(3)(d)): It is suggested by the respondent that the appropriate country to which Mr Savage would be removed is New Zealand. His closest family members (his mother, sister, brother and two uncles) live in New Zealand. In these circumstances, he would be being asked to re-establish his life there with the benefit of his close family members. With their support, he would be better placed to avoid the risk of relapsing into drug and alcohol abuse and to engage in rehabilitation to avoid a recurrence of these indulgences. The fact that Mr Savage has close familial ties in New Zealand would also support a decision to cancel his visa.
(d) Hardship to an applicant or his immediate family members lawfully resident in Australia (paragraph 11(3)(e)): If Mr Savage was required to return to New Zealand, in circumstances where his son remained in Australia, this could have adverse consequences in terms of his psychological wellbeing. There is no evidence to indicate that he financially supports his son. However, it may be possible for Mr Savage to arrange for his son to join him in New Zealand, through external custodial arrangements through the Family Court. There is no evidence to indicate that emotional distress might be experienced by his close family members residing in New Zealand, if he returned there.
(e) Level of education (paragraph 11(3)(f)): Mr Savage has, during his time in prison, obtained few qualifications that might assist him to obtain employment if he was returned to New Zealand. In fact, in the letter from the Parole Board dated 16 March 2011, he has poor attendance at work and education.
(f) Whether the person has been formally advised in the past by an officer of the respondent (paragraph 11(3)(g)): On 23 October 2009, the respondent sent Mr Savage a letter containing a formal warning that any future criminal conduct may result in cancellation of his visa. He said he could not recall receiving the letter. However, on 10 February 2011 when he was sent the NOICC, he requested an extension of time to reply and ultimately responded with a written submission on 31 March 2011. He gave no evidence that, prior to receiving the NOICC, he did not know or believe his visa might be cancelled if he committed further offences or otherwise breached the character test.
52.In summary, those of the factors under the heading “Other Considerations” that are relevant do not favour Mr Savage being able to remain in Australia.
balance of considerations and conclusion
53.Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to the Direction, whether those considerations, on balance, favour cancellation or non-cancellation of Mr Savage’s visa.
54.Mr Savage has a lengthy and consistent record of serious offences, including incidents of violence, which are mainly drug related. He was convicted of 23 recorded offences in the 10 month period from July 2008 to 24 January 2009 and from 25 November 2009 to 9 February 2010. He has shown a disregard for the law, despite a lengthy period of imprisonment. In an extract from a Pre-Release Report to the Parole Board, he has been described as having a poor attitude towards staff, to be insolent in his demeanour, rude and abrasive with staff. He has been argumentative, aggressive and has had a poor attitude towards officers. Having viewed him at the hearing, although he displayed signs of sorrow when discussing his son, there were other occasions when he displayed signs of anger and indifference and expressed no real remorse for his conduct in the past. His history shows a high probability that he will again revert to abusing alcohol or drugs and committing serious, possibly violent offences. There is an unacceptable risk of harm to the Australian community from his conduct in the future, and I am not satisfied that any of the other considerations, including the best interests of (T) viewed as a primary consideration, outweigh the unacceptable risk of harm. Moreover, I am not satisfied, on the evidence before me, that the best interests of (T) require that Mr Savage remain in Australia. There is no evidence that his son’s best interests would be served by him remaining in the country or that he would be able to see him in future, if he does.
55.I feel I should say something about the future care and wellbeing of (T). On the evidence before me and on mature reflection, it seems to me that his best interests would be achieved if appropriate arrangements were made, through Families SA, for him to be cared for by other family members or for him to be placed into foster care. If the occasion arises, there may also be an opportunity in the future for (T) to be cared for by his maternal grandmother, or even Mr Savage, in New Zealand.
decision
56.The decision under review is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard...................................
AssociateDate of Hearing 4 October 2011
Date of Decision 18 October 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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