Schulz and Minister for Immigration and Multicultural Affairs
[2007] AATA 1015
•18 January 2007
DECISION AND REASONS FOR DECISION [2007] AATA 1015
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1509
GENERAL ADMINISTRATIVE DIVISION ) Re Tom Schulz Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date18 January 2007
PlaceSydney
Decision The decision under review is affirmed.
[SGD]
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation of transitional (permanent) visa – substantial criminal record – crimes involving theft to support drug addiction – applicant given previous warning of cancellation – necessary to balance expectations and protection of Australian against interests of applicant’s three children – consideration given – decision under review affirmed
Migration Act 1958 ss 499, 501, 501(2), 501(6)(a), (c)
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 58
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
18 January 2007 Professor GD Walker, Deputy President Summary
1. The applicant, Tom Schulz, aged 42, is a citizen of Denmark. He first arrived in Australia on 15 April 1967. He was granted a resident return visa on 20 December 1991 which was deemed to be in force after 1 September 1994 under the Migration Reform Regulations as a transitional (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided to cancel Mr Schulz’s transitional (permanent) visa on the ground that he does not pass the character test because of his substantial criminal record, including 20 counts of break and enter building to commit an indictable offence, and having regard to his past and present criminal conduct. That is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant concedes that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having been sentenced to terms of imprisonment totalling more than 12 months. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.
Background
4. Mr Schulz was born in Denmark on 29 April 1964 and is aged 42. He is separated from his wife, Lucy Schulz, with whom he has three children, Jana aged 16, Leah aged 14 and Chad aged 11. Ms Schulz is a citizen of Denmark. He first came to Australia on 15 April 1967 as a permanent resident, departing on 13 January 1982. He returned to Australia on 8 February 1982, and departed again on 7 December 1991. He was granted a resident return visa on 20 December 1991 and returned to Australia again on 21 December 1991. His last departure from Australia was on 26 June 1994 and he returned 10 July 1994. He has remained in Australia since that time. Mr Schultz’s resident return visa was deemed to be a transitional (permanent) visa on 1 September 1994 under the Migration Reform Regulations. It has been determined that he does not hold an absorbed person visa.
5. Since 1991, he has had the following convictions recorded against him:
Court/Sentence date Offence Conviction Sutherland Local Court
2/10/2001
1. Break and Enter building (steal) (2 counts) 1. Imprisonment 13 months commencing 10/8/2001. 2. Break and Enter building (steal) (3 counts) 2. Imprisonment 19 months commencing 10/8/2001, non-parole period 13 months. 3. Goods given other not entitled reasonably suspected stolen 3. Imprisonment 4 months commencing 10/8/2001. 4. Break and Enter building (steal) 4. Imprisonment 19 months commencing 1/8/2001. Sutherland Local Court
2/10/2001
1. Break and Enter building (Steal) (2 counts) 1. Imprisonment 19 months commencing 10/8/2001, non parole period 13 months. 2. Break and Enter with intent (Steal) 2. Imprisonment 13 months commencing 10/8/2001. 3. Break and Enter building (Steal) (11 counts) 3. Imprisonment 13 months commencing 10/8/2001. Kogarah Local Court,
30/6/2005
Assault occasioning actual bodily harm Fined $300, court costs $63. Sutherland Local Court,
27/1/2006
1. Use uninsured motor vehicle 1. Fined $700, court costs $65. 2. Use unregistered registrable class A motor vehicle 2. See 1 above 3. Drive on road while suspended 3. Bond s 9, 12 months; court costs $65, disqualified for 12 months commencing 27/1/2006. 4. Drive vehicle on road or road related area, motor vehicle tax not paid 4. Fined $500, court costs $65. Kogarah Local Court,
27/4/2006
1. Break and Enter building (steal) 1. Imprisonment 6 months commencing 27/4/2006. 2. Good suspected stolen given other not entitled (not motor vehicle) 2. Imprisonment 3 months commencing 27/4/2006. 3. Dispose property – theft – serious indictable offence 3. See 2 above 4. Receive property – theft – serious indictable offence 4. See 1 above 5. Furnish false/misleading information to licensee (2 counts) 5. Fined $200. Blacktown Local Court,
2/2/2006
1. Breach of bail 1. Bail made. 2. Common assault 2. s9 bond good behaviour 3. Stalk/intimidate with intent to cause fear physical/mental harm
3. See 2 above
6. On 15 July 2002, Mr Schulz received a warning that his visa might be liable for cancellation under s 501 of the Migration Act 1958 (“the Act”) on character grounds. On 1 September 2002 the Minister for the then Department of Immigration and Multicultural and Indigenous Affairs decided not to exercise his discretion to cancel his visa but to issue a warning to him “that conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa” (G p76). Mr Schulz acknowledged receipt of that warning in writing on 9 September 2002 (G p77).
7. Following this warning, Mr Schulz was convicted of further offences, including assault occasioning actual bodily harm and common assault, motor vehicle-related offences, stalk/intimidate with intent to cause fear or physical/mental harm for which he received fines and a s 9 bond, and a six months custodial sentence for break and enter offences.
8. On 15 September 2006, an officer of the Department of Immigration and Multicultural Affairs (“DIMA”) informed Mr Schulz that the Minister’s delegate was, after taking into consideration the following documents, considering cancelling his transitional (permanent) visa on the grounds of his substantial criminal record:
·his record of 8 “convictions, sentences and appeals” dated 5 July 2006,
·his criminal history and bail report dated 12 July 2006,
·a copy of the previous warning given to him on 6 September 2002,
·the receipt signed and dated 6 September 2002 acknowledging the warning (G pp76-77),
·a copy of the notice of intention to cancel his visa issued to him on 15 July 2002,
·a copy of the notice of intention to cancel his visa in 2002 entitled “Further Information Before the Department” dated 23 July 2002,
·a copy of the receipt he signed and dated 23 July 2002 acknowledging the warning, and
·the transcript of Magistrate Schurr’s sentencing remarks made on 2 October 2002 (G p70).
Mr Schulz was invited to comment by 29 September 2006 (G p51).
9. In response to the Department’s notice, Mr Schulz made a written submission to the department dated 26 September 2006 (G p60), in which he stated he had been married for 17 years and separated from his wife for two years; he began using drugs which lead him to “criminal resources to get out of debt”; that he had only been in prison for “1 yr and 7 months, Under 2 yrs”; it had had a huge impact on his three children aged under 18 who he supports as a “dad” and financially; his wife finds it difficult to care for the children on her own; he has the support of his parents who he will reside with if allowed to remain in Australia, working as a tradesman in his father’s painting and decorating business; he would live a positive life style and he would be seeking counselling and financial planning assistance when he was released to help him fit into society again (G p60). He also lodged letters of support from his sister Annette Hanson dated 4 October 2006 (G p61), a family friend Noelene Adams (undated), his wife Lucy Schulz (undated) (G p63), his parents Benna and Frank Schulz dated 5 October 2006 (G p67), and his sister Laila Kennedy dated 6 October 2006 (G p69).
10. On 25 October 2006, a delegate of the respondent, taking into consideration the previous warning about the risk of cancellation given to the applicant in 2002, the applicant’s submissions and letters in support, the seriousness of his conduct, the risk of recidivism and the best interests of his three children, decided to cancel Mr Schulz’s transitional (permanent) visa because of his substantial criminal record and the continuing risk that he would re-offend (G pp1-15). The decision was affirmed by the Deputy State Director for DIMA on 26 October 2006 and personally handed to Mr Schulz on the same day. Mr Schulz was released from Parramatta Correctional Centre on 26 October 2006, whereupon he was detained at the Villawood Immigration Detention Centre, Sydney by operation of the Migration Act.
11. At the hearing, the applicant was represented by Ron Kessels, solicitor, of Kessels Goddard & Ajuria, and the respondent was represented by Therese Quinn, of Phillips Fox solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence presented at the hearing. Oral evidence was given by Mr Schulz, Associate Professor Susan Hayes, Mrs Benna Schulz and Ms Rebecca Deane.
Relevant Law and Policy
12. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(ii). Section 501(6)(a) and (c) provide:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c)having regard to either or both of the following:
…
(ii)the person’s past and present general conduct;
…
”Substantial criminal record” is defined in s 501(7)(c) to include a person who has been sentenced to a term of imprisonment of 12 months or more”.
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal) such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance to decision makers on the application of the character test and on the considerations to which decision-makers must have regard to when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence relating to the offences and rehabilitation prospects
15. At the hearing the applicant adopted his statement dated 26 September 2006 (G p60), his undated statement (Exhibit A4) and his statement of 5 January 2007 (Exhibit A5).
16. As his sister Laila Kennedy stated, his main weakness is that he does not have a strong character and when he is under pressure, that causes him to make the wrong choices (Exhibit A9, para 21). The wrong choices that were the immediate precursors of his criminal activities have been drugs and gambling. At the hearing he conceded that he had a problem with “drug dependence on and off over the long term”. He denied ever using marijuana, but according to his pre-sentence report dated 27 April 2006 he started using cannabis at the age of 19. In his early 20s he started to experiment with amphetamines and used them from time to time but not habitually (Exhibit A4). Although he lived at home until he was about 25 years old, his parents were unaware that he was using illicit substances. His mother Mrs Benna Schulz stated (Exhibit A7) that “Tom was never much of a drinker and he would rarely even have a beer, much preferring a soft drink. He was a quiet person and we had no concerns about drugs, alcohol or gambling”. In about 2001 when his behaviour and attitudes changed and he was demonstrating major mood swings, his step-father Frank Schulz confronted him about drug use, which he at first denied and then said it was just “recreational” (Exhibit A7, para 17). His mother said at the hearing that after his release in 2002 he lived with them for a couple of months before moving to Queensland to his genealogical father’s house for six months. During that time she felt he was using drugs, but he would always deny it. Denial in one form or another thus seems to be a persistent feature of his drug dependency, even up to the day of the hearing when he denied ever using marijuana.
17. After his first child was born he and Lucy, his wife (they married in 1998 after their three children were born) began to have financial difficulties. In an attempt to raise money he began gambling, but when that endeavour produced the inevitable results he began to abuse drugs. At the time he thought that they were helping him, but they only made his financial situation worse and ‘really began his marriage breakdown’ (Exhibit A4, para 7).
18. As his debts accumulated he continued abusing drugs, which were costing him about $50 per dose, three times a week.
19. He said he cannot remember exactly how he started to break into houses, but it seemed to him like a quick way to make money that he needed to pay the rent and their other debts, in addition to buying drugs. He knew that it was wrong, but once he had started he simply continued. After he was arrested he admitted his crimes and was granted bail pending sentence, but immediately returned to drugs and gambling and broke into two more houses.
20. On 2 October 2001 he was sentenced to 19 months’ imprisonment for a total of 31 offences, including 20 counts of breaking and entering a building, all of them relating to residential premises. Magistrate Schurr estimated the value of the property stolen as being in the tens of thousands of dollars, if not more (G p35). Two of the offences of breaking and entering, as was noted above, were committed while the applicant was on bail.
21. Of the 19 months he served 13 months, and says that during that time his wife and children visited him on a very regular basis, almost every weekend. Sometimes his mother would come with them, and on other occasions she would simply drop them off. He completed a number of rehabilitation programs, including courses relating to alcohol and drugs, and earned a minimum-security classification. “By the end of the sentence”, he wrote, “I had come to terms with the fact that I had used a drug addiction to escape my depression and realised that I had caused so much tension between all of my own family including my parents and my sister. I really wanted to change and thought that I could do it without any help and I did not go to any counselling” (Exhibit A4, para 14).
22. On 15 July 2002 the respondent notified the applicant that his visa was liable to cancellation on character grounds. On 6 September 2002, shortly before the applicant was released from custody, the department notified him by letter (G p76) that the minister had decided not to cancel the visa, but added emphatically that the minister had also determined “to issue a warning to you that conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa” (emphasis in the original). The applicant acknowledged receipt of the warning in writing (G p77).
23. After his release he returned to live with his wife and children, and for a time all went well. After about 18 months, however, financial problems started to accumulate again and the applicant was finding it difficult to obtain sustained work. He then returned to drugs but sought no help with his problems because, he said, he thought he could extricate himself from them on his own. He and his wife were both gambling at that stage and had no money. On 30 June 2005 in the course of a major argument, the applicant punched Lucy twice in the face causing bruising or reddening, which led to his conviction for assault causing actual bodily harm.
24. After that he returned to live with his parents for a couple of months before moving to Queensland for six months to stay with his genealogical father. He says that he worked full-time while in Queensland and was not using drugs during that period. He decided to return to Sydney for Christmas 2005 and purchased a car, but it was unregistered and uninsured because he lacked the money for that purpose. Shortly afterwards, however, he was arrested for driving an unregistered and uninsured car and was prosecuted and convicted. While in Sydney he returned to live with his wife and the children but financial problems and marital disagreements saw him return to drug abuse, and when they fell behind in their rental payments, he decided to commit another breaking and entering. “At that time I did not even think about the warning that I had had from Immigration about deportation. It just never entered by mind”, he wrote (Exhibit A4, para 19). In January 2006 he was charged with breaking, entering and stealing, goods in custody, disposing of stolen goods, receiving stolen goods and furnishing false information to a licensee. The pre-sentence report dated 27 April 2006 noted that he “appears to have very limited insight into his offending behaviour. To date he appears to have been unable and/or unwilling to seek counselling to address his long-standing substance abuse” (G p64). He was sentenced to a total of six months’ imprisonment on those charges and was eligible for release on 26 October 2006. He considers himself lucky not to have received a longer sentence.
25. During this more recent term of imprisonment he was moved a number of times, which he said made it difficult for him to take part in any counselling or rehabilitation activities. He maintained contact with his children by telephone but his wife was reluctant to allow her children to have direct contact with him while he was in prison. Her reluctance may have had something to do with his violent assault against her in June 2005 and his threatening and intimidating behaviour towards her in January 2006 that led to his conviction for common assault, stalking and intimidating and breach of bail.
26. Since he has been in immigration detention at Villawood, Lucy and the children have visited him twice or possibly three times. He says he now realises that he needs professional help and counselling for his drug and gambling problems and accepts that his marriage to Lucy is unworkable and finished. If released into the community he plans to live with his parents and work, at least, part-time, with his semi-retired father. He says his father has agreed to help him to organise his finances (his father gave no evidence in these proceedings). He says that he intends to work hard and stay away from drugs and gambling.
27. In her clinical psychological assessment of the applicant dated 20 November 2006 (Exhibit A6), Associate Professor Susan Hayes, head of the Centre for Behavioural Sciences in the Department of Medicine at the University of Sydney, and an experienced forensic psychologist, noted that the applicant attributes his criminal activity to two major factors, financial difficulties and amphetamine addiction. The financial difficulties arose partly because both he and his wife were gambling and also because of the financial strains of supporting a family with three young children. Professor Hayes assessed his intelligence as being in the low average range and found that he does not suffer from any psychological or psychiatric disorders. In relation to rehabilitation and recidivism, she concludes that “The likelihood of future re-offending on the part of Mr Schulz after he is released from custody will be dramatically reduced owing to a number of factors”. The first was that he is willing to participate in rehabilitation and counselling for his amphetamine addiction and is keen to remain abstinent from amphetamines. The second would be participation in an appropriate gambling program and a financial management program. The fact that the relationship with Lucy is now at an end with no chance of reconciliation was likely to remove one the major sources of stress for him. In his case the risk factors include gambling and poor financial management, stress, shyness and inability to cope, drug use and tension between his wife and parents. She considered that the risk management plan she outlined “has a good chance of reducing the risk in each of these areas”.
28. It should be noted that most of the strategies and solutions identified by Professor Hayes lie in the future, which necessarily makes her assessment somewhat contingent. Asked at the hearing whether financial pressure to provide for his family could still lead him to re-offend, she did not directly answer but replied that counselling and rehabilitation would give him other ways of coping with his problems. He could have other options and would have the support of counsellors.
29. Ms Rebecca Deane, a forensic psychologist with the firm Dr Timothy J Sharp & Associates Pty Limited, conducted a psychological assessment of the applicant on 3 January 2007 with a view to organising a program of cognitive behaviour therapy. This would be designed to help him to improve his level of functioning so that he is able to return to work, social, family and recreational activities, and to teach him a range of more appropriate and adaptive management strategies to remain abstinent from amphetamines and manage stressful situations more effectively (Exhibit A8). She proposes a program of approximately six sessions focussed on various issues but is waiting for the outcome of the present proceedings to prepare a detailed plan for treatment. Asked if there was empirical evidence about the success rate for rehabilitation through this kind of therapy, Ms Deane replied that the literature is limited and she could not give any evidence of empirical results as a percentage. All she could say was that treatment of this kind was better than having no treatment. She could not estimate the prospects of success because that depends on individual circumstances, motivation and engagement in the treatment, and whether or not there is any drug use in the course of the program.
Evidence relating to the children’s best interests
30. The applicant has three children, Jana (aged 16), Leah (aged 14) and Chad (aged 11). Their mother, Mrs Leah Schulz, gave no evidence in these proceedings. In a letter to the respondent in October 2006, however, she wrote that “Although they [the children] are in my care and provided for by me, they do not like the thought that their father could possibly be deported” (G p63).
31. From her point of view, she wrote, “As a single mother, who works and juggles her home duties on my own, it bothers me to think that he could not get the chance to have some responsibility and share some of the strain that I carry” (ibid). She said nothing about the extent of contact between the applicant and the children or the nature of the relationship between them.
32. None of the children gave evidence in the proceedings either other than through the psychologist report, but the eldest, Jana, wrote a letter on 2 January 2007 in which she stated, “He has a good heart and we “do” care about him, like he “deep down” cares about us. It has been hard not having our father around, but it would be harder and sad if he was not here at alI” (Exhibit A11).
33. Associate Professor Hayes interviewed the children and their mother on 24 November 2006. Her overall assessment of their present situation, as she gave it at the hearing, is that they are doing well and are well adjusted. Their separation from their father has had no substantial negative impact on them so far. Their schooling is progressing well and they have good peer relationships. Except for Leah they are able to talk to other children about their family situation because many of their peers at school have worse family problems than theirs.
34. Jana told Professor Hayes that she thought it would be “really bad” if her father were deported to Denmark because she has not come to know him well because of the periods of time he has spent in prison. If he went to Denmark she would never have the chance to get to know him because financial constraints would prevent sending the children there to see him. She said her father was present in the family from the time she went to preschool through to when she was in Years 5 or 6 at school. She said she did not see much of her father during his imprisonment. They visited him occasionally in prison and he made phone calls to the children.
35. There is a significant difference between her statement on that point and the evidence of her mother and grandmother, who say that during his first period of incarceration they visited him almost every week. His sister Annette Hansen gives a similar estimate (Exhibit A10). The other children say nothing about the frequency of visits, other than that they have not had a chance to get to know their father. It is possible that the visits were in fact almost a weekly event but that they made little impression on the children because of the constrained and artificial setting in which they were meeting their father. I think it more likely, however, that the other witnesses have overstated the frequency with which the children were taken to visit the applicant in prison. At all events it is clear that they did not visit him during his second period of imprisonment and that they have seen him at most three times since he has been detained in Villawood.
36. Jana told Professor Hayes that the thought of her father leaving the country makes her sad and she would prefer that he remain in Australia because she and her siblings have not had a chance to know him.
37. Leah’s comments were to the same effect, and she also said that she had not been able to get to know him well because of the time he spent in prison. She would like to know him better because she feels that she and her siblings “missed out on the experience of having a father”.
38. Professor Hayes said that Chad co-operated well with the assessment. He seems to have taken a rather businesslike approach to the issue of visa cancellation, saying that he would like his father to have one more chance, but if he “mucked that up”, then he should not have any more chances after that. Chad also said, like his sisters, that he would be sad if his father were deported because he has not really had a chance to know him.
39. Mrs Lucy Schulz said the children would be sad if the applicant were deported but thinks that Jana, who is very independent, would be the one best able to cope. “Mrs Schulz admits”, Professor Hayes observed, “that it would be easier for her if her former husband remained in Australia because she could share some of the parenting responsibilities and he would be able to offer some financial support to the family”.
40. She said that as a result of his imprisonment there had been no father figure in the children’s lives, and that her son in particular “latches on” to the fathers of his friends to try to replace the father-son relationship.
41. In the professional literature, Professor Hayes wrote, there is evidence of negative effects from the relocation of a parent away from children, relocation being defined as being more than one hour’s drive away from the other parent. Although in general she found that the children were doing well, her tests showed that the two younger children, Leah in particular, showed evidence of negative effects in that their self-concept scores were below average. At the hearing Professor Hayes conceded that Leah’s low score could be attributable to her being the middle child of three, and there was an extensive literature on the problems of children in that position. Chad’s score, however, although higher, was still considerably below average. His knowledge of the marital strife between his parents, and in particular the assaults, if he knew about them, might also have affected his result.
42. In the opinion of Associate Professor Hayes, the best interests of the children would be served by Mr Schulz’s remaining in Australia. She considered that if he is removed, it could cause a shock like a death and a grief reaction that could affect their adjustment, with the possibility of future psychological problems or health risks if they lost contact with him. She agreed, however, that similar difficulties would have been presented by his absence in jail.
43. As was mentioned above, the children’s mother did not give evidence in these proceedings, nor did their grandfather, Mr Frank Schulz, although in an October 2006 letter to the department he and Mrs Benna Schulz wrote that “should Tom be deported, it would be extremely difficult at our age to assist with the upbringing of his children” (G p10). Mr Frank Schulz is aged 67 and Mrs Benna Schulz is 63 (Exhibit A7). Mr Schulz is semi-retired and works part-time.
Application of the Law and Findings of Fact
44. As was stated above, the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Schulz was sentenced to terms of imprisonment of 19 months and 13 months (to be served concurrently) for break and enter offences.
45. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Schulz’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
46. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
47. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (f) assault or any other form of violence against persons, (l) serious theft because of the amounts of money involved and the disruption caused to individuals and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community. Paragraph 2.7 also refers the decision-maker to look at the extent of the person’s criminal record, including the number and nature of offences and the time that has elapsed since the most recent offence.
48. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
49. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the crimes committed by the applicant involve several counts of break and enter a building to commit an indictable offence for which he was sentenced to 19 months imprisonment, 13 counts of break and enter a building to commit a serious indictable offence for which he was sentenced to a fixed term of imprisonment of 13 months, together with motor-related offences and offences relating to assault occasioning actual bodily harm and assault/stalk/intimidate to cause physical or mental harm, for which he was given a section 9 bond to be in force for two years.
50. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include:
(f)murder, manslaughter, assault or any other form of violence against persons;
…
(l)serious theft (including “white collar” crimes):
·such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;
…
(n)any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; and …
51. In sentencing the applicant on 2 October 2001, Magistrate B Schurr of the Local Court, Sutherland, after outlining that the applicant had committed 31 offences in total ranging over 19 suburbs in Sydney, including two committed after the applicant was released on bail, stated:
It’s been submitted by Mr Thomas [solicitor] that the fact that the defendant didn’t wear gloves, was driving his own, possibly a distinctive white Kombi van, and didn’t disguise his appearance showed that there was no professional planning. However, on the other hand the range and diligence of which Mr Schultz [sic] applied himself by committing so many offences over a relatively short period. He was going out to work at least once a week and in June several times a week to commit these offences. So in a sense there was a commitment and hard work was put into committing these offences over a range of nineteen different suburbs. … And I also take into consideration the value of the property which hasn’t been quantified. But I note that one of the break and enters property estimated at a value of $11,500 was stolen and at all of the venues it appears that electrical goods and jewellery were taken so the amount of property stolen would be in the tens of thousands of dollars if not more. (G pp70-74)
52. The applicant submitted that there was no suggestion in any of the sentencing comments that any of the offences involved any harm or threat of harm to any person. While a significant amount of property had been stolen, the amount was never quantified. Despite being offences which could have been dealt with on indictment, the charges were dealt with summarily in the Local Court. The June 2005 assault occasioning actual bodily harm, when the applicant punched his wife twice in the face, could not be condoned, but as the penalty, a fine of $300, showed, the offence was not in the most serious category of assaults. The assault and stalking and intimidation charges indicated that there was no actual physical harm to Mrs Schulz and that the conduct was not at the serious end of the scale for such matters. The traffic offences for which he was convicted in 2006 were not, he submitted, the types of matters for which a person’s visa should be cancelled. In his reply at the hearing Mr Kessels stressed that it was important that the greater part of the applicant’s criminal record consisted of property offences.
53. It should be noted, however, that the applicant’s numerous breaking and entering convictions related, without exception, to private residences. The value of the property stolen was very substantial, even though it could not be accurately quantified. In about half of the cases jewellery was stolen, including personal jewellery items whose importance to the owner probably greatly exceeded their market value. The property he stole from Christine Burgess on 25 June 2001, for example, included a lady’s gold wedding ring and eternity ring, and a gold ring with a diamond, possibility an engagement ring. Many women regard such items as irreplaceable. Magistrate Kennedy in his sentencing remarks on 27 April 2006 noted that the offence was a very serious one “because it involved an invasion of a person’s property and these are residential premises” (Exhibit A3, p68). Other judicial officers have referred to the violation of personal space involved in theft from people’s homes. The late Judge Goran when sentencing in such cases often referred to the persisting psychological trauma caused to householders by such crimes, especially to women and girls.
54. I therefore find that the applicant’s offences are very serious.
55. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10 of Direction No 21 states that it is the Government’s view that the person’s total criminal history is highly relevant to assessing the likelihood of an offence and the risk of recidivism. The paragraph also directs that it is relevant in assessing the risk of recidivism if a non-citizen has committed further offences after having been warned previously about the risk of cancellation. In this case, the applicant received a warning in 2002, which he acknowledged in a signed receipt on 6 September 2002.
56. In his sentencing remarks in the Sutherland Local Court on 2 October 2001, Magistrate Schurr noted that the applicant did not turn to criminal activities until the age of 37 and that his offences were committed to support his drug habit and “escalating possible drug debts” and to pay other debts, including family debts, incurred since he became unemployed (G p72).
57. Mr Kessels also pointed out that the applicant’s record was free of any convictions until he was aged 37. His offences had arisen from financial pressure, so that if his financial position could be put in order there would be good prospects that he would not engage in law-breaking again. Professor Hayes had expressed the view that his circumstances had now substantially changed, in particular because his marriage to Lucy Schulz, which had been a significant source of stress for him, was now at an end. During his second period of incarceration he had been moved around in the correctional system several times, and that had made it difficult for him to enrol in rehabilitation courses. Now he was motivated to seek counselling and proposed to undertake treatment to deal with his drug and gambling problems. The written warning of possible visa cancellation that he had received on 6 September 2002 (G pp76-77) did not create a presumption that his visa should be cancelled, but was in part designed to prevent the creation of anything in the nature of estoppel in the event that his visa status were reconsidered - its only relevance was to the risk of recidivism.
58. As against that, the applicant’s record shows a repetitive pattern of offending over a period of six years and paragraph 2.10(b) of Direction No 21 notes that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism. A gap between convictions may show that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed.
59. It is true that he did not begin offending until he was 37, but it is normally youth, not maturity, that is regarded as a mitigating factor or as an indication that criminal behaviour may not be repeated. The gravity of the applicant’s offences has if anything been increasing, with two convictions for assault, together with stalking and intimidating behaviour. The fact that the second assault was committed shortly after an apprehended violence order had expired could be viewed as showing a calculating attitude towards the operation of the sanction system (see Exhibit A3 p77)
60. Associate Professor Hayes thought that the most positive factor in reducing the applicant’s risk of re-offending was the ending of his marriage to Lucy. But Lucy Schulz has repeatedly made it clear that one of the main reasons why she hopes the applicant will remain in Australia is that she expects him to share the burdens of parenting with her, not only financially but in other respects. Consequently the risks of stress and conflict with her may continue.
61. The applicant has expressed the intention to undergo rehabilitation and plans to return to live with his parents and work at least part-time for his father. Those arrangements, if they come about, are however in the future, and as Ms Deane said, the prospect of success from rehabilitation programs of the type proposed are difficult to estimate. In his case it is noteworthy that he did complete drug and other rehabilitation courses during his first term of incarceration, but that did not prevent him from re-offending. Even today, denial seems to be a feature of his discussion of his drug problem.
62. The September 2001 pre-sentence report portrayed the applicant as “an individual who is now deeply ashamed of his involvement in criminal offences and who is somewhat at a loss to explain how he could become so deeply involved in serious matters at this stage of his life after many years of apparent industrious work” (Exhibit A3, p31), but his deep feelings of shame did not prevent him from relapsing, nor did he seek drug treatment and counselling as recommended by the probation and parole officer after he was released (Exhibit A3, p32). As recently as 27 April 2006, his pre-sentence report noted that “Mr Schulz appears to have very limited insight into his offending behaviour. To date he appears to have been unable and/or unwilling to seek counselling to address his longstanding substance abuse” (Exhibit A3, p74). He was thought to present a medium to high risk of re-offending.
63. The fact that the applicant has committed a further offence after having been warned previously about the risk of visa cancellation is specifically mentioned in Direction No 21, paragraph 2.10(a) as relevant to the risk of recidivism. The written warning that the applicant received, and of which he acknowledged receipt in writing, had no effect on him. He said himself that he did not even think about it when he resumed housebreaking. In my view his disregard of that warning reinforces the view that the applicant presents a moderate (or, as the respondent contends, a high) risk of recidivism.
64. The risk of recidivism thus counts in favour of visa cancellation in this matter.
65. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
66. In my view considerations of general deterrence weigh against disturbing the reviewable decision in this case, particularly in view of the applicant’s disregard of an express warning.
Expectations of the Australian Community
67. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.
68. Mr Kessels argued that while it is impossible to know what the Australian community would expect in a case such as this, it was hard to imagine that it would expect Mr Schulz’s children to be separated from their father in circumstances where there is no suggestion that he has caused them harm in any way, and where there is evidence to suggest that they may suffer psychological problems as a result.
69. The respondent submitted that the seriousness and ongoing nature of the applicant’s criminal activities is such that the community would expect visa cancellation. That was so notwithstanding that the community may have some compassion for his situation given the number of years he has lived in Australia. The respondent conceded also that the children clearly would suffer some detriment.
70. Any compassion that the Australian community might feel because of the length of time the applicant has lived in Australia would, however, in my view be largely offset or entirely negated by his total disregard of the minister’s explicit warning to him about the consequences of any further lawbreaking. At the same time, community opinion would be concerned about the position of the children and would expect a decision-maker to give close scrutiny to their position, prospects and interests. For the reasons given below, however, I have concluded that the best interests of the children do favour allowing the applicant to remain in Australia, but not to a marked extent. In my view the community would on balance expect visa cancellation in this case.
Best Interests of the Child
71. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. The tribunal also notes paragraph 2.16 of Direction No 21 which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
72. Mr Schulz has three children under the age of 18 whose interests must be considered under this section, a daughter, Jana Schulz born 27 January 1991 and aged 16, a daughter Leah Schulz born 14 September 1992 and aged 14, and a son Chad Schulz born 15 January 1996 and aged 11. The children, all Australian citizens, reside with their mother, the applicant’s wife from whom he has been separated for approximately two years. In a letter in support to the department (facsimile date 5 October 2006) Ms Schulz said “they are in my care and provided for by me” (G p63) and “they do not like the thought that their father could possibly be deported”.
73. In his submission to the department dated 26 September 2006, Mr Schulz said, referring to his three children, “[c]onsidering their ages, I need to support them again, not only as a better dad, also financially, for my de facto will find it hard to raise the kids alone” (G p60).
74. On behalf of the applicant Mr Kessels contended that until the first assault on Lucy in June 2005, the applicant and his children shared a close and intimate relationship in which he played a parenting role despite his period of incarceration. After that he spent only a short time with Lucy and the children before he was rearrested in January 2006 and during his second period of imprisonment Lucy decided that the children should not see him again in prison, though they did have telephone contact.
75. Mr Kessels argued that for the most part the children have seen their father regularly and have managed to maintain a close relationship with him. That relationship should continue, but it could not if the applicant were removed from the country because there was no suggestion that it would be practicable for the children to move to Denmark to be with him. Associate Professor Hayes had outlined why there could be concerns that the children could suffer psychological harm if their father is removed from Australia, and they would suffer severe emotional stress and hardship if that were to occur.
76. There was a notable paucity of evidence about the children from family members in these proceedings. Their mother gave no evidence, and in a letter to the department in October 2006, said only that the children “do not like the thought that their father could possibly be deported”. The applicant’s references to the children focussed more on his needs than on theirs. Mrs Benna Schulz, the children’s grandmother, said little about the children in her evidence, but commented that the applicant “has not been a great father in the last couple of years”. She said the children want him to remain in Australia and love him very much. “Although all of our family would try to help out [if the applicant were removed], it is not the same thing as having their father with them” (Exhibit A7, para 30).
77. The main evidence relating to the children is in the written report and oral testimony of Associate Professor Hayes. Professor Hayes stated that all of the children are at present well adjusted and not showing symptoms of anxiety, depression, anger or disruptive behaviour, despite their father’s incarceration. The two younger children showed lower than average scores in relation to self-concept, but Professor Hayes conceded that in Leah’s case that could be attributable to her position as the middle child and that Chad’s score could have been affected by the strife between his parents and the applicant’s assaults against his mother. The children’s favourable situation could, however, change if the father were removed from Australia. At the hearing Professor Hayes said that removal could produce a shock like a death, with a grief reaction that could affect their adjustment and present possible future psychological problems or health risks if they were to lose contact with him. Telephone contact would be no substitute for day-to-day contact and the sharing of problems, given the artificial nature of telephone conversations. She conceded that there had been no signs of grief reactions resulting from the applicant’s prison sentences, but that was because the children were able to remain in contact with him and knew their separation was finite.
78. Professor Hayes’s evidence did not suggest that potential losses of self-esteem in the two younger children would be irreversible and did not consider whether other sources of help and encouragement might offset or reverse such effects. She made no reference to possible support and assistance from other family members, such as the possibility that Chad’s grandfather might be able to stand in to some extent as a father figure for him. She did not think telephone calls were any real substitute for regular contact, but did not consider the effect of modern communications that are today used to help maintain contact between widely separated family members. Webcam is often used for that purpose, and downloads of free software such as Skype enable people to conduct real-time conversations with synchronised mouth and facial movement video and showing the caller’s surroundings in the background. As such calls are free of charge, there is no financial limit on their duration or frequency. While even that could not be a complete substitute for physical presence, the availability of such facilities is significant consideration given that Professor Hayes’s predictions are predicated on the parent losing contact with the child, which plainly need not happen today.
79. Under paragraph 2.16(a) and (b) of Direction No 21, the tribunal is to have regard to the nature of the relationship between the child and the non-citizen and its duration. A striking feature of the evidence in this case is that all of the children say they do not really know their father because of his absences in prison and elsewhere. Leah added that she and her siblings had “missed out on the experience of having a father”. Her mother said that as a result of the applicant’s imprisonment there had been no father figure in the children’s lives. Professor Hayes herself noted that there has been little recent contact between the children and the applicant and they have changed dramatically since he lived with them. That is common in such cases where the parent has been absent for periods which, although not substantial from an adult’s perspective, represent a significant proportion of a child’s life, she said.
80. That evidence, as well as other indications (such as Chad’s rather detached view of his father’s future), suggests that the present relationship between the children and the applicant is not a particularly close one. His removal after visa cancellation would not entail wrenching a beloved father away from the bosom of his family but rather the loss, or deferment or dilution, of an opportunity for a closer relationship in the future. It is in that context that Professor Hayes’s evidence needs to be understood. That type of potential relationship is given less weight by Direction No 21:
… the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct (para 2.16(b).
…
If he were to remain in Australia and re-offend, there would of course be further separations from the children in any event.
81. Mrs Benna Schulz, the children’s grandmother, assured the tribunal that if the applicant were removed, “all of our family would try to help out” with the children. She and her husband live about a kilometre away from the children and Mrs Schulz has to date played an active part in their lives, such as by taking the children on visits to their father in custody. In 2006 the children spent their holidays with them (Exhibit A3 pg 76). The evidence shows no reason why Mr Frank Schulz could not also play a part, and it is possible that he already does. These days significant numbers of men in their 60s have young children. As he is still working part-time as a painter and decorator in his own business, it can be inferred that he remains reasonably agile, co-ordinated and alert. The evidence shows no reason why he could not take on some of the role of a father figure, particularly in relation to Chad, helping him to acquire some of the background and skills that a boy needs. At all events it seems likely that he would be a better role model than the applicant.
82. Direction No 21 proceeds on the basis that in general a child’s best interests are served if the child remains with its parents. In this case that factor is at least partly offset by the fact that the relationship at present is not a particularly close one, that a significant degree of contact can now be maintained through webcam and other methods and eventually through visits, and that all family members are able and willing to give whatever support and assistance they can to the children.
83. For those reasons I conclude that while the best interests of the children tend against visa cancellation, they are a considerably less weighty factor in this case than one would normally expect.
Other Considerations
84. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and any compassionate circumstances.
85. Lucy Schulz and the three children all reside in Sydney, as do the applicant’s parents and two sisters. In their letter to the department, Mr Frank Schulz and Mrs Benna Schulz said that they were prepared to accommodate the applicant upon his release, that he could start work immediately in his father’s painting and decorating business and that they promised to make a “concerted effort to iron out Tom’s weaknesses, and give him a fresh start in life with the support of family and friends” (G pp67-68). Lucy Schulz stated in her letter to the department that while she and the applicant had been separated for a long time with no interest in reconciliation, “As a single mother who works and juggles our home duties on my own, it bothers me to think that he could not get the chance to have some responsibility and share some of the strain that I carry” (G p63). She did not say whether the applicant had been providing any financial support for the children before his incarceration, but it is clear she has borne sole responsibility for the children for some considerable time.
86. Thus, the applicant’s family will suffer some disruption and emotional hardship if the applicant’s visa is cancelled, but they seemingly adjusted to the disruption and anguish caused by his prison sentences. The further effects of his removal to Denmark would be significant, but probably not severe, and could be mitigated by the possibility of visits as well as telephone and internet communications as discussed above.
87. The applicant says he intends to enter into counselling and rehabilitation programs, but so far the evidence of rehabilitation consists mainly of words and intentions rather than deeds, and is of relatively of recent date. He claims to be free of drugs, but given his tendency towards denial on that subject, his assurances must be treated with some caution. His disregard of an express warning about the risk of visa cancellation is a particularly telling piece of evidence suggesting that his rehabilitation is problematical.
88. The applicant would suffer some hardship if required to return to Denmark. He has lived in Australia for 39 years. At the hearing he said that he understands the Danish language, “but I can’t speak so much”. His parents spoke Danish in the home, and also English.
89. He has visited Denmark once and has some aunts and uncles there. His mother said they could not be expected to support him, but that should not be necessary. He probably knows enough Danish to obtain work in his trade as painter and decorator, and as is well known, many Danes of his generation and younger speak good English. It was not suggested that Denmark lacked a social welfare system that would afford him a safety net should he have difficulties in that regard. The emotional hardship of separation from his immediate family could to some extent be alleviated through modern communications and eventually by the possibility of visits from them.
90. I find that the considerations of community protection and expectations in this case outweigh the best interests of the children and the other considerations.
91. The decision under review should be affirmed.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
[Sgd] BKS (Associate to DP Walker)
Date/s of Hearing 12 January 2007
Date of Decision 18 January 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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