Schulz and Minister for Immigration and Multicultural Affairs
[2007] AATA 1865
•17 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1865
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1509
GENERAL ADMINISTRATIVE DIVISION ) Re TOM SCHULZ Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date17 October 2007
PlaceSydney
Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the discretion in s.501(2) of the Act be exercised in favour of the applicant. [Sgd R J Groom]
Deputy President
CATCHWORDS
VISAEX - Immigration - cancellation of visa for failing the character test - substantial criminal record - discretion not to cancel visa when applicant fails character test - Ministerial Direction No. 21 - protection of Australian community - expectations of Australian community - best interests of applicant's three children - other considerations - best interests of children outweigh other considerations - discretion exercised in applicant's favour - decision under review set aside
Migration Act 1958, ss 499, 501(2),(6)(a),(7), 501G
Ministerial General Direction (No. 21)
Re To Nguyen Duong and Department of Immigration and Multicultural Affairs 2001 [AATA] 442
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (unreported)
REASONS FOR DECISION
17 October 2007 The Hon R J Groom (Deputy President) 1. This is an application to review a decision by a Delegate of the respondent to cancel the applicant's Transitional (Permanent) Visa.
2. That cancellation was made under s.501(2) of the Migration Act 1958 ("the Act") on the ground that the applicant did not pass the character test within the meaning of the Act. The delegate had chosen not to exercise the discretion in that section in favour of the applicant.
3. The decision to cancel the visa was made on 26 October 2006 and communicated to the applicant on that date.
4. On 2 November 2006 the applicant applied to this Tribunal for a review of the decision.
5. The application for review came before the Tribunal, then differently constituted, for hearing on 12 January 2007. In its decision published on 18 January 2007 the Tribunal affirmed the decision to cancel the applicant's visa.
6. On 18 January 2007 the applicant filed a Notice of Appeal in the Federal Court of Australia. On 12 April 2007 Cowdroy J ordered, by consent, that the appeal be allowed and the matter remitted to the Tribunal for determination according to law.
7. The application to the Tribunal was then reheard at Parramatta on 3 September 2007. At the rehearing Mr R Kessels appeared for the applicant and Ms T Quinn for the respondent.
8. Oral evidence was given in person at the rehearing by the applicant and also by Lucy Schulz, Jana Schulz, Leah Schulz and Leila Kennedy. Oral evidence was given by telephone by psychologists, Christina Xavier and Associate Professor Susan Hayes. Several documents were tendered in evidence including the documents produced pursuant to s.501G of the Act (the "G Documents") and also, at the request of both parties, the transcript of the earlier proceedings held on 12 January 2007.
Background
9. The applicant, now 43 years of age, was born in Denmark on 29 April 1964 and remains a citizen of that country. He arrived in Australia with his family on 15 April 1967 at the age of 2 years. Except for three brief visits overseas in 1982, 1991 and 1994 he has lived continuously in Australia since his arrival.
10. The applicant has some relatives but no immediate family in Denmark and has limited knowledge of that country. His mother, stepfather and his two sisters reside permanently in Australia. His natural father is also residing in this country.
11. The applicant attended primary school at Waverley in Sydney and later Arncliffe Public School and the James Cook High School. He left school at Year 10. He subsequently became a painter and decorator and worked in that trade.
12. In about 1988 the applicant commenced a de facto relationship with Lucy Wetere who was originally from New Zealand. The couple have three children, Jana Wetere Schulz born 27 January 1991 (now 16 years), Leah Schulz born 4 September 1992 (now 15 years) and Chad Schulz born 15 January 1996 (now 11 years). The applicant married Lucy Wetere in 1998. This was some years after the birth of their children. The marital relationship became strained in recent years and they separated but remain on friendly terms. There is no reasonable prospect of reconciliation. The three children reside with their mother.
13. The applicant commenced using illicit drugs including cannabis and amphetamines when he was a teenager. He later also developed a gambling habit. As a result of those addictions and the resultant serious financial problems he faced he became involved in criminal conduct from about April 2001 when he was approximately 37 years of age.
14. The applicant's criminal record is as follows:
(a) On 31 July 2001 the applicant was arrested and charged with six counts of Break/Enter & Steal and also one count of being in possession of goods suspected of being stolen.
(b) On 10 August 2001 he was again arrested and charged with a further 13 counts of Break/Enter & Steal and one count of Break/Enter with intent.
(c) Two of the offences for which he was charged on 10 August 2001 were committed whilst the applicant was on bail.
(d) The applicant appeared in the Sutherland Local Court on 2 October 2001 and was convicted of all the above offences. For the two offences committed whilst on bail he was sentenced to 19 months imprisonment with a non-parole period of 13 months. He was sentenced to 15 months imprisonment on other offences. The prison terms were deemed to commence on 10 August 2001 and were to be served concurrently. The applicant served 13 months at the Long Bay Prison and was released on 9 September 2002.
(e) On 30 June 2005 the applicant was convicted in the Kogarah Local Court of Assault Occasioning Actual Bodily Harm. The facts relating to this offence were that the applicant punched his wife twice in the left cheek area causing redness and swelling. For this offence he was fined $300.00 and required to pay court costs of $63.00.
(f) The applicant was later convicted in the Sutherland Local Court on 27 January 2006 of the use of an uninsured and unregistered motor vehicle, driving a vehicle on which motor vehicle tax had not been paid and driving whilst suspended. For those offences he was fined a total of $1,200.00 and was ordered to pay court costs of $195.00, placed on a good behaviour bond and disqualified from driving for 12 months.
(g) In the Blacktown Local Court on 2 February 2006 the applicant was convicted of common assault, breach of bail and stalk/intimidate with intent. He was placed on a s.9 bond for two years and an Apprehended Violence Order was imposed. Once again the victim of these offences was his wife Lucy.
(h) The applicant was convicted of further offences in the Kogarah Local Court on 27 April 2006. These offences included a count of Brake/Enter & Steal, having goods in his possession suspected of being stolen, receiving and disposing of stolen property and furnishing false and misleading information to a licensee. He was sentenced to two terms of imprisonment of 6 months and 3 months, to be served concurrently, and was fined $200.00.
15. As mentioned the applicant served 13 months in prison following the convictions of 2 October 2001. During that sentence his wife and children visited him regularly. On occasions his mother would also visit him. The applicant completed a number of rehabilitation programs whilst in prison serving that sentence.
16. Following his release from prison on the first occasion the applicant returned to live with his wife and children. For a period of some 18 months he refrained from illicit drug use and remained out of trouble. However after that time he found himself in further financial difficulties and he also turned to drugs and gambling. After his June 2005 conviction for assaulting his wife he resided with his mother and stepfather for a period before moving to Queensland to stay with his natural father. He lived in Queensland for about 6 months and again refrained from the use of drugs during that period. In December 2005 he once again returned to live with his wife and children in Sydney. His financial problems then re-emerged and he again turned to drug use and eventually further criminal conduct. This led to further convictions in January 2006 and the six months imprisonment.
17. The applicant was due for release on 26 October 2006 but on that date his visa was cancelled and he was immediately placed in immigration detention. He has been detained at the Villawood Detention Centre since that date. The applicant has therefore spent a very long period in detention.
18. In 2002 when the applicant was in prison following his convictions for the offences in October 2001 the respondent considered cancelling the applicant's visa on character grounds under s.501 of the Act. On 6 September 2002 the applicant was advised that his visa would not be cancelled but he was warned in writing that if he was convicted of any further offences a fresh assessment would be made as to whether his visa should be cancelled. The applicant signed a written acknowledgement of the warning on 6 September 2002.
19. On 15 September 2006 the applicant was notified of the respondent's intention to again consider cancelling his visa for character reasons. The applicant submitted a number of responses to that notification during September and October 2006. On 26 October 2006 the delegate found that the applicant did not pass the character test and decided to exercise the discretion in s.501(2) of the Act and cancelled the applicant's visa.
The Issue
20. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record", and under s.501(7), this term is defined to include a sentence of imprisonment of 12 months or more.
21. There is no dispute, and I find accordingly, that the applicant does not pass the character test as he has been sentenced to a term of imprisonment of 12 months or more.
22. Even though the applicant has not passed the character test the original decision-maker and therefore this Tribunal has a discretion to allow the applicant to retain his visa and so remain in Australia.
23. The principal issue to be determined by the Tribunal is therefore whether or not to exercise that discretion in favour of the applicant.
Direction No. 21
24. In exercising the discretion the Tribunal must have regard to and be guided by Ministerial General Direction (No. 21) - Direction under s.499 Visa Refusal and Cancellation under s.501 of the Act ("Direction No. 21").
25. In speaking about such a direction Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643:
"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that power in reviewing that decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case".
26. I agree with the view expressed by Deputy President Wright in Re To Nguyen Duong and Department of Immigration and Multicultural Affairs 2001 [AATA] 442 when he said:
"... the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution. In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514)".
27. As stated in 2.2 of the Direction:
"Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations".
28. So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction No. 21, decide how best to exercise the discretion in order to achieve justice.
29. The three primary considerations in Direction 21 are as follows:
(a) The protection of the Australian community, and members of the community.
(b) The expectations of the Australian community; and
(c) In all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
The Protection of the Australian Community
30. As part of this primary consideration the Tribunal must first consider the seriousness and nature of the conduct.
Paragraph 2.6 of Direction 21 provides examples of offences which the government considers to be "very serious". There is a reference in that paragraph to "home invasion", "assault" and "serious theft". These terms are not defined. There is also a reference to the sentence imposed by the court and to the extent of a person's criminal record including the number and nature of the offences.
31. Breaking into people's private homes for the purpose of stealing is a most serious crime. The applicant committed that crime on numerous occasions in 2001 and there was a further similar offence and related offences in 2006. The value of the property stolen, although not precisely quantified, was substantial. When sentencing the applicant on 2 October 2001 Magistrate Schurr said that electrical goods and jewellery had been taken and that the value of the property stolen "... would be in the tens of thousands if not more ...". There is no evidence of actual violence associated with these particular offences but when someone breaks into a person's private residence there is obviously potential for confrontation and a risk that someone may be harmed. In particular, committing this type of offence or indeed any offence whilst on bail is evidence of a blatant disregard of the courts and the law and is particularly serious.
32. In June 2005 the applicant was convicted of assaulting his wife Lucy and occasioning actual bodily harm. He had punched his wife twice in the left cheek area causing redness and swelling. Then in February 2006 the applicant was convicted of one offence of common assault and one of stalk and/ intimidate with intent. His wife Lucy was again the victim of this conduct. No actual physical harm was caused to Lucy in that incident. The applicant was placed on a further bond. Although not at the most serious end of the scale any violence or intimidation against a wife is serious conduct.
33. Although he was involved in those two separate incidents of violence and threatened violence against his wife the evidence is that there have been no offences of actual violence committed against members of the public or with other individuals with whom he has had an association.
34. In April 2006 the applicant was convicted of a further break enter and steal offence and several related property offences. Again these offences were serious particularly as he had previously served a prison sentence for similar offences. This is obviously further serious and unacceptable conduct.
35. The Tribunal has also considered the number of offences committed, the time between offences and also the various sentences imposed by the courts.
36. The Tribunal must also consider the likelihood that the conduct may be repeated.
37. The Tribunal finds that the applicant's break enter and steal and related property offences were linked in particular to his financial problems and his use of illicit drugs. If he is able to manage his financial affairs and refrain from further use of illicit drugs then the Tribunal considers he has some prospects of avoiding further criminal conduct. The evidence establishes that the applicant has now resolved to participate in rehabilitation and counselling for his drug addiction. The Tribunal is satisfied that he has a genuine intention and determination to abstain from drugs and accepts that he has been drug free during the time he has spent in Villawood.
38. If the risk of further property offences and related offences of dishonesty is to be removed it is the Tribunal's conclusion that the applicant will also need assistance to address his financial and gambling problems. There are programs available to assist the applicant in dealing with these particular problems. There are also genuine offers of support and assistance to manage his finances from his stepfather, his mother and other family members. His stepfather, a businessman, would initially take charge of his financial affairs. A factor in the offences against his wife has been the deterioration in the relationship and the related stress and strains and also tensions between his wife and his parents. As has been mentioned the relationship with his wife is now at an end with no reasonable prospects of reconciliation. The applicant's intention is to initially live with his parents and work with his stepfather as a painter and decorator. These changed circumstances will make it unlikely that there would be further offences against his wife. The resulting reduced tensions will also lower the risk of a return to illicit drug use, gambling and financial problems.
39. The fact that the applicant committed further offences after having been warned previously about the risk of visa cancellation is another factor which must be given careful consideration. This issue is expressly referred to in paragraph 2.10(a) of Direction 21.
40. There is no dispute that the applicant, at the time they were given, was fully aware of the warnings he had received. He acknowledged receipt in writing of the warning on 6 September 2002. As previously indicated a number of offences were committed after he had been warned.
41. In speaking of the warning and his re-offending afterwards the applicant said in evidence:
"After that period of time it just didn't cross my mind. It just didn't cross my mind, not at all". (Transcript page 24)
42. At the hearing Mr Kessels asked the applicant:
"Now I suppose the obvious question is, you had that warning and you did re-offend, what would happen if you were released now?".
The applicant replied:
"The only difference it would be because I know this is the only chance I have of making a new life of it and it just that any one would know as a father that being separated to a different country and away from your kids is very, very – it would just tear you apart, you know. I think that just gives you a better outlook on, you know, doing the right thing, you know. It is just the thought of being away from the kids. Being in a different country, you know, and never seeing your kids – having any communication or doing anything with them, you know, and never to return to the country; I mean it is a wake-up call in itself to, you know, make you do the right thing. Plus I am at the age where, you know, I just want to get on while I am at the age and physically fit and healthy and that. So I just want – that is the only inspiration and guidance I have, is my kids, to do it better for them, nobody else, nobody else". (Transcript page 24)
43. The applicant plainly understood the nature of the warning when he received and acknowledged it. His next offence was committed some two years and nine months later. That was the domestic assault on his wife. The driving offences were committed more than three years after the warning was issued. At that stage he had again started using amphetamines. The warning was no longer uppermost in his mind. The applicant is now acutely aware of the gravity of the situation he faces and obviously realises that he would be deported if he was involved in further offences.
44. Associate Professor Hayes expressed the following opinion in her report of 11 December 2006:
"The risk factors in the case of Mr Schulz include gambling and poor financial management, stress, shyness and inability to cope (related to low verbal skills), amphetamine use, and tension between his wife and parents. As noted above, the risk management plan as outlined has a good change of reducing the risk in each of these areas.
One very positive aspect for Mr Schulz's rehabilitation is the fact that he does not suffer from any major psychiatric or psychological disorders, and he has the ability to achieve insight into his own functioning and behaviour, as well as the ability to understand the outcomes for him and his children.
I am aware that Mr Schulz has been given a warning in the past, and subsequently re-offended. In that instance, however, after being released from prison he returned to a situation where he was under stress and financial difficulty, and the re-offending behaviour seemed to be directly related to the risk factors as outlined above. Therefore, with the risk factors having been significantly altered and reduced, I consider that his probability for re-offending has dropped dramatically".
45. Psychologist Christina Xavier agreed that the applicant has a reasonably good prospect of leading a drug free life in the future. She said in her oral evidence:
"... he has shown great motivation to overcome his difficulties that he has been experiencing in the past. He has shown that he wants to read about the sort of difficulties that he is having, which shows that he is motivated to learn first of all about his problems. And that in order to learn about those he will then learn strategies over his difficulties at the same time". (Transcript page 56).
46. After carefully considering all of the material before the Tribunal and closely observing the applicant in the witness box the Tribunal concludes that the applicant is now strongly motivated to overcome his addictions and his financial and other relevant problems and that there is now a good prospect that this can be achieved. The Tribunal notes that although the applicant was involved in illicit drug use including cannabis and particularly amphetamines from his teenage years his first conviction occurred when he was approximately 37 years of age. His serious criminal conduct took place between the ages of approximately 37 and 42 years. Within that relatively short period there was a period of some 18 months when no offences were committed. His offending was a serious late blight on what had been, in the main, a hardworking and good life.
47. The Tribunal concludes on the evidence before it that there is now a low risk that the applicant will commit further offences.
48. An additional matter to be considered under Direction 21 is the issue of general deterrence. The aim of this part of Direction 21 is to deter people from committing the same or similar offences by affirming the cancellation of the visa. The principal deterrent, of course, in criminal activities is the actual penalty imposed by the courts on conviction, but visa cancellation can have an impact in discouraging other non-citizens from being involved in such activities. However I do not consider this to be a major factor in the Tribunal's decision on this application.
The Expectations of the Australian Community
49. Paragraph 2.12 of Direction 21 states:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application to cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia".
50. It is reasonable to suggest that the Australian community generally would, without being appraised of all of the particular circumstances, expect the respondent to cancel the visa of a non-citizen who had committed a significant number of break enter and steal and other serious offences and had been sentenced to quite lengthy periods of imprisonment. However the Tribunal is of the view that if fair-minded members of the Australian community were informed that the applicant had come to Australia as a two year old, had not been convicted of any offences before he attained 37 years of age, was now determined to rehabilitate himself, had strong support from his parents and members of the extended family in Australia, also has three children in Australia who are Australian citizens and who want him to remain here and may suffer harm if he does not, and that he has limited knowledge of Denmark and no immediate family there then they would have some concern for his predicament.
51. As was said by Deputy President McMahon in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at 34:
"... there would be a general expectation in the community that the Act would be administered fairly and humanely".
The Best Interests of the Children
52. The best interests of any children of the applicant under 18 years of age is another primary consideration in Direction 21.
53. As previously mentioned in these reasons the applicant has three children, Jana who is 16, Leah 15 and Chad now 11 years of age. The children are citizens of Australia and have lived all of their lives in this country.
54. It is evident from reading the transcript of the initial hearing that a significant amount of additional information and evidence on this particular issue was provided at the rehearing on 3 September 2007. The Tribunal now has the advantage of hearing oral evidence from the children's mother Lucy Schulz and from two of the children, Jana and Leah. The applicant's sister Leila Kennedy also gave oral evidence relevant to a consideration of what is in the best interests of the children.
55. Paragraph 2.15 of Direction 21 acknowledges that "In general terms the child's best interest will be served if the child remains with its parents". That paragraph also refers to certain countervailing considerations which may point to the child's interest being served by separation from the non-citizen. There is no evidence in this case suggesting abuse or neglect of any of the children by the applicant. The children were not exposed directly to his illicit drug use or criminal conduct. It is reasonable to assume that his conduct and absence due to his imprisonment would of had some kind of emotional impact upon the children. The Tribunal, however, accepts Associate Professor Hayes' opinion that "there is no reason to presume that it would be in their best interests to take him away from them for their own protection" (Transcript page 69).
56. The Tribunal is satisfied that the applicant is a good father and has a close loving relationship with his three children. His sister Leila Kennedy said in her oral evidence:
"I can only say from my opinion he was an ideal father. He was always there for them. He worked hard. Quite often I would go round to the house after school, take my children round there to visit Tom’s children. I would see him playing with the children, preparing dinner, bathing them. He was a real hands-on father and always mucking around with the children, making them laugh and just having fun with them". (Transcript page 71).
57. The eldest child Jana said:
"he’s very interested in our school. He uses his, like, his drug abuse as a way to say what not to do with our life. He is very, like, tries to get as much involved with our friends in school as he possibly can, yes, he calls whenever he can and sees how we are"
Mr Kessels asked Jana:
Do you see him as, despite what he’s done, do you see him as a loving father?"
To that question Jana answered "yes". (Transcript page 48)
58. Daughter Leah said in evidence that her father takes an interest in her school work particularly art, skating and other activities. She said she talked to her brother Chad about what it would be like if their father is released from Villawood. She said:
"We would talk about places we could go if my dad was here and stuff because before he went to prison we used to go to like parks and stuff and now where we go is very limited, yeah". (Transcript page 51)
59. Lucy Schulz, who impresses as a hardworking person and a good mother, said in her evidence to the Tribunal that she believed the children would want to spend time with their father and that this would also assist her. She said:
"I think they would prefer to spend time with him rather than me". (Transcript page 40)
She also said:
"I think he is sincere about being different or changing and it will help me with the kids". (Transcript page 39)
60. Associate Professor Hayes interviewed each of the children in her rooms at the University of Sydney on 24 November 2006. In her report of 11 December 2006 she details her psychological assessment of each child and after detailed reasoning concludes that the best interests of the children would be served by the applicant remaining in Australia. Associate Professor Hayes made the following comments in her report:
"The studies cited are merely a tiny proportion of the literature which demonstrates overwhelmingly the importance of children having access to both of their parents, and the significance of having exposure to the different parenting styles by the mother and the father. The research literature also indicates that the father-son relationship is particularly important for the long term development of the self-concept of the child.
The Schulz children are Australian citizens. They all indicated that it would be difficult for them to travel to Denmark because of the family financial situation and also their educational commitments.
The impact of the father's prior criminal conduct and imprisonment on the children may have been somewhat distressing, although none of the children indicated this. They indicated only positive attitude towards their father. Their separation from their father as a result of his imprisonment appears to have already taken a toll on the self-concept on the two younger children, Leah and Chad, possibly because Jana has had more contact with her father during the course of her life. Therefore, it could be expected that permanent separation from the father would have an even greater effect on the self-concept and other aspects of psychological development of these children. All of them are at present well adjusted in other areas of their life, and not showing symptoms of anxiety, depression, anger or disruptive behaviour. However, based on the research literature this situation could change if the father was removed from Australia. At the moment all of the children are maintaining hope that they will not be separated from their father and this is no doubt contributing to their present stable psychological functioning; the reality of his removal (if this eventuates) will no doubt have a severe effect akin a grief reaction".
61. The Tribunal is not bound to accept Associate Professor Hayes' opinion even though no contrary expert evidence was advanced on behalf of the respondent. It does however find her reasoned opinions to be persuasive.
62. Following the birth of the children the applicant had lived with his wife and children until he was first imprisoned in October 2001. Jana was then 10, Leah 9 and Chad 5. He had therefore played an important role in their formative years. While he was in prison in 2001 and 2002 Lucy and the children visited him regularly. After his release in September 2002, he again resided with his wife and children.
63. Soon after the assault on his wife in June 2005 the applicant went to live with his parents and then moved to Queensland for a period of time. He then returned to reside with Lucy and the children until the further offences were committed.
64. When the applicant was imprisoned for the second time and sentenced to six months in prison contact with Lucy and the children was difficult because he was regularly moved from one New South Wales prison to another. The family, including the children, did maintain contact by telephone. Visits from Lucy and the children have been regular during his period in Villawood Detention Centre.
65. If he is permitted to stay in Australia the applicant would not live with Lucy and the children. He would reside with his parents in a nearby suburb and would then be able to see the children often and provide support to their mother in their upbringing.
66. The evidence establishes that if the applicant is deported the children would continue to reside with their mother in Australia. The family is struggling financially and obviously would not have the means to make regular visits to Denmark. The children would lose regular contact with their father on what could well be a permanent basis.
67. After considering all of the material before it the Tribunal is satisfied that the interests of the three children would best be served if the applicant were allowed to remain in Australia.
Other considerations
68. A number of "other considerations" are set out in Direction 21. That list is clearly not meant to be exhaustive. The Tribunal has considered all of those matters in reaching its decision.
69. An important consideration is the impact deportation would have on the applicant's wider family. All of the applicant's immediate family reside in Australia. His mother, stepfather and two sisters now live here. His natural father resides here. If the applicant is deported and not able to return to Australia it will cause distress not only to his children but also to his wider family. Denmark is a significant distance away and regular contact would be both difficult and expensive.
70. There is no persuasive evidence of immediate family support, accommodation arrangements or job prospects in Denmark.
71. The applicant is now 43 years of age. He came to Australia at the age of 2 years. He was brought up and educated here. He has lived in Australia for his entire life except for brief visits overseas. That in itself does not mean that the applicant should not be deported. As Her Honour Justice Mathews said in Yung v Minister for Immigration and Multicultural Affairs, 21 October 1998 (unreported):
"Where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered, notwithstanding that the person arrived in Australia as a minor. The overriding consideration stressed in the policy statement is the need to protect the Australian community against the criminal behaviour of non-citizens".
I agree with Her Honour's observations. However all relevant factors must be carefully considered before concluding that a person should be deported from Australia.
Conclusion
72. It is necessary for the Tribunal to evaluate and weigh all of the various considerations before arriving at its conclusions. That has been done.
73. There is no doubt that the applicant has committed a significant number of serious offences. As noted by both Magistrate Schurr and Associate Professor Hayes he commenced his criminal activities in his late 30's. Associate Professor Hayes described this as "unusual". I agree. The applicant is now determined not to be involved with drugs and further criminal activity and he has considerable family support to rehabilitate himself and in the future lead a decent, useful and law abiding existence. The Tribunal is satisfied that these intentions have some prospect of being realised. There is now present a level of determination and strength of support that did not exist previously.
74. A critical factor in weighing up the competing considerations is the primary consideration of the best interests of the children. There is no doubt that the interests of the three children will best be served if the applicant is permitted to remain in Australia. I accept Associate Professor Hayes' opinion that the children will suffer significant grief and stress if their father is deported and that this may well adversely affect their health in the long term.
75. Despite the fact that the applicant has committed serious offences and some of those offences were committed after he had received a warning that his visa might be cancelled, the Tribunal concludes that in the particular circumstances of this application the best interests of the children outweigh all other considerations including the other primary considerations of the protection and expectations of the Australian community. The markedly reduced risk of further offences is a significant factor in weighing the competing considerations. The discretion provided in s.501(2) should therefore be exercised in favour of the applicant.
76. Should the applicant commit further offences in the future then the Tribunal would expect that he would face deportation.
77. I set aside the decision under review and remit the matter to the respondent with a direction that the discretion in s.501(2) of the Act be exercised in favour of the applicant.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 3 September 2007
Date of Decision 17 October 2007
Solicitor for the Applicant Mr R Kessels, Kessels Ajuria & Goddard
Solicitor for the Respondent Ms T Quinn, Phillips Fox Solicitors
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