SCHUSTER-MCFADYEN And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 574
•19 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2347
GENERAL ADMINISTRATIVE DIVISION ) Re JASON SCHUSTER-MCFADYEN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member Egon Fice Date19 August 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
..........[sgd] Egon Fice............
Senior Member
EXPEDITED VISA – New Zealand citizen– Temporary Visa – Character Test – Substantial criminal record– Ministerial Direction 41 – Protection of the Australian Community – Assault – Robbery – Risk of recidivism – Heavy smoker of cannabis – Convention on the Rights of the Child – Unborn Child
Migration Act 1958 (Cth) ss 496(1A), 499(1), 500(1), 501(2), 501(6), 501(7)
Ministerial Direction No 41 – Visa Refusal and Cancellation under Section 501
Griffiths v Minister for Immigration Multicultural and Indigenous Affairs (2003) 176 FLR 272
Ieng Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
Rosson v Minister for Immigration and Citizenship and Another (2011) 191 FCR 390
Convention on the Rights of the Child (opened for signature 20 November 1989), United Nations, Treaty Series, vol. 1577, p.3 (Entered into force 2 September 1990)
International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p.71 (Entered into force 23 March 1976)
Universal Declaration of Human Rights (10 December 1948), General Assembly Resolution 217 A (III)
REASONS FOR DECISION
19 August 2011 Senior Member Egon Fice 1.Mr Jason Schuster-McFadyen is a citizen of New Zealand. He was born on 24 November 1985. After being granted a Class TY, Subclass 444 Special Category (Temporary) visa, Mr Schuster-McFadyen first arrived in Australia on 29 June 2004. He was about 18½ years of age at the time.
2.It appears from the documents that a notice of intention to consider cancellation of Mr Schuster-McFadyen’s temporary visa was first sent to Mr Schuster-McFadyen on or about 15 February 2010. However, it is uncertain as to whether that notice in fact reached Mr Schuster-McFadyen. A second notice dated 30 December 2010 was subsequently sent to Mr Schuster-McFadyen and it appears that the Minister for Immigration and Citizenship (the Minister) acted on that notice. In a letter dated 9 June 2011 the Minister notified Mr Schuster-McFadyen that his visa had been cancelled pursuant to s 501(2) of the Migration Act 1958 (the Act). In accordance with s 500(1) of the Act, Mr Schuster-McFadyen lodged an application for a review of the Minister’s decision by the Tribunal on 15 June 2011.
3.Section 501(2) of the Act provides that:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
4.The character test is set out in s 501(6) of the Act. It provides that a person does not pass the character test if the person has a substantial criminal record as that expression is defined in s 501(7) of the Act. Section 501(7) provides, amongst other things, that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Because Mr Schuster-McFadyen was sentenced to imprisonment for a period of two years on 25 November 2009 in the Brisbane District Court, for the purposes of the Act, he is a person who has a substantial criminal record. Therefore, and there was no dispute about this, he does not pass the character test set out in s 501(6) of the Act.
5.The only issue for me to determine is whether the Tribunal, standing in place of the Minister, should exercise the discretion to cancel Mr Schuster-McFadyen’s visa pursuant to s 501(2) of the Act.
MINISTERIAL DIRECTION NO. 41
6.Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act regarding the performance of those functions or the exercise of those powers. A person or body must comply with the Direction under s 499(1) of the Act.
7.The Minister made Directions under s 499 of the Act on 3 June 2009, the direction being described as Direction No 41 – Visa Refusal and Cancellation Under Section 501 (the Ministerial Direction).
8.Paragraph 5.1 of the Ministerial Direction sets out its objectives. It provides:
5.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non‑citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and disabled.
9.Part A of Part 2 of the Ministerial Direction deals with the application of the character test. However, because it is common ground that Mr Schuster-McFadyen does not pass the character test, I need not be concerned with Part A.
10.Part B of the Ministerial Direction deals with the exercise of the discretion referred to in s 501(2) of the Act. It is applied where a person does not pass the character test. The Ministerial Direction sets out primary considerations and other considerations. I must take into account the primary considerations and may take the other considerations into account where appropriate. I am only required to take into account directly relevant considerations. Furthermore, as is explained in paragraph 11(2) of the Ministerial Direction, other considerations should be given less weight than that given to primary considerations.
11.Paragraph 10(1) of the Ministerial Direction sets out the four primary considerations. They are:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has ordinarily been resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations including, but not limited to:
i.the best interests of the child as described in the Convention on the Rights of the Child (CROC); and
ii.the non-refoulement obligations contained in…the International Covenant on Civil and Political Rights (ICCPR)…
12.The expression non-refoulement is generally a reference to the return of persons to a country where they are liable to suffer some form of persecution or where their life or freedom would be threatened.
PROTECTION OF THE AUSTRALIAN COMMUNITY
13.Paragraph 10.1 of the Ministerial Direction sets out the factors which are relevant to assessing the level of risk of harm to the community of a person’s continued stay. They include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk the conduct may be repeated.
14.Paragraph 10.1.1 of the Ministerial Direction explains what the Minister considers to be serious offences and conduct. Paragraph 10.1.1(1) refers particularly to crimes involving violence or the threat of violence as being of special concern to the welfare and safety of the Australian community. Paragraph 10.1.1(2) cites examples of conduct considered serious and includes:
(d)grievous bodily harm, reckless injury, assault and aggravated assault (including abduction); and
(e) robbery.
15.The serious offences of which Mr Schuster-McFadyen was convicted and sentenced to two years imprisonment were the following:
(a)entered dwelling with intent (four counts between 1 December 2007 and 2 March 2008);
(b)attempted robbery – use/threaten violence (three counts between 1 December 2007 and 28 February 2008); and
(c)robbery, wound or use personal violence on 2 March 2008.
16.Mr Schuster-McFadyen was detained on remand between 5 March 2008 and 15 January 2009 when he was released on bail. He pleaded guilty to all of the above charges and Judge O’Brien of the District Court Criminal Jurisdiction, in Brisbane, made the following sentencing remarks:
You have a criminal history which is fairly described as being more in the nature of nuisance offences than genuinely criminal offending. Nevertheless, as your counsel concedes, it is concerning.
These offences, although they are always serious, do not possess many of the more serious features that often are associated with offences of robbery and I accept that they occurred in the context and against the background as outlined by your counsel. In all the circumstances, particularly given the lengthy time you spent in prison, which has been about 10 or 11 months, I have ample scope for dealing with you today.
17.Judge O’Brien sentenced Mr Schuster-McFadyen to two years imprisonment on each of the charges and ordered they be served concurrently. However, he suspended the two year sentence because Mr Schuster-McFadyen had already served 317 days on remand. The two year suspended sentence commenced from the date of sentencing, being 25 November 2009.
18.The remarks of his Honour Judge O’Brien need to be understood in context. I have referred to the very extensive criminal history of Mr Schuster-McFadyen under the next consideration, which deals with the risk that the conduct may be repeated. Suffice to say for the present that Mr Schuster-McFadyen’s criminal history in Australia goes back to 2005 and he continued offending after his conviction and sentencing on the more serious offences to which I have referred above.
19.It is also instructive to examine the indictment on Mr Schuster-McFadyen’s charges relating to his serious offences. There were eight counts in the indictment. They refer to Mr Schuster-McFadyen entering a dwelling intending to commit indictable offences including assault and robbery with a weapon. I find that the offences referred to in the indictment are of a serious nature and fall within those crimes regarded as serious by the Minister in the Ministerial Direction.
20.Paragraph 10.1.1(3) of the Ministerial Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community and that I must have due regard to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
I must consider any other relevant information, such as judicial comments on the individual’s case. I must also consider any relevant factors which the applicant provides as mitigating factors.
21.As I understand the requirements of paragraph 10.1.1(3) and (4), those factors relate to offences and conduct that are considered serious. They do not relate to other less serious crimes or conduct of which an applicant may be guilty. I therefore confine my remarks to the eight counts which resulted in conviction on the serious offences. Those eight counts involved entering a dwelling with intent to commit an indictable offence and the assaults and robbery which followed. The eight counts took place between 1 December 2007 and 2 March 2008.
22.Counts one and two refer to incidents which occurred between 1 December 2007 and 1 January 2008 when Mr Schuster-McFadyen entered the dwelling of a person intending to commit an indictable offence. He assaulted the person in the dwelling intending to steal and he caused actual violence to that person while armed with a knife.
23.The third and fourth counts refer to an incident which took place between 1 December 2007 and 28 February 2008 when Mr Schuster-McFadyen again entered the dwelling of the person I have referred to above intending to commit an indictable offence. He assaulted that person intending to steal and he used actual violence to obtain the thing that he intended to steal while armed with a knife.
24.Counts five and six refer to an offence committed on 28 February 2008 when Mr Schuster-McFadyen entered the dwelling of the person I have referred to above intending to commit an indictable offence. He assaulted that person and used actual violence when armed with a knife.
25.Counts seven and eight of the indictment refer to an incident which occurred on 2 March 2008 when Mr Schuster-McFadyen entered the dwelling of a second man intending to commit an indictable offence. He robbed that second person and immediately before the robbery, he used personal violence against that person when armed with a fork.
26.Quite plainly, these offences were serious and repeated a number of times over a period of about three months. Although Mr Schuster-McFadyen has not committed further serious crimes since convicted of the offences I have referred to above, there are a number of other offences which were subsequently committed by Mr Schuster-McFadyen which are described below.
27.In his oral evidence, Mr Schuster-McFadyen explained his behaviour as a result of being young and cocky, and his minor offending as simply being cheeky. He said that he attended school in New Zealand up to year 12 but did not complete his secondary schooling which, he said, in New Zealand concludes at year 13. It appears that his father left the family at an early stage and he does not know his whereabouts. He believed his mother lived in Upper Hutt, which is a short distance out of Wellington, but he has lost contact with her. He said he commenced smoking cannabis at a very early age, since about 14 years, and has been a regular dope smoker since.
28.Despite pleading guilty to the serious offences and being convicted on all counts, when asked about circumstances of those events, Mr Schuster-McFadyen said that he was not armed with a knife nor had he used actual violence against anybody. He suggested that the charges had been downgraded. However, his criminal record clearly discloses otherwise. As to the robbery and attempted robbery, and the fact that he possessed a weapon (a fork), he simply said they were allegations. He said he did not take anything from the first person and there was some dispute about money regarding the second person.
29.However, if I were to accept what Mr Schuster-McFadyen says about those offences, I believe I would be undermining the criminal justice system. This was explained by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. The Court said, at 244:
The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
30.Given that Mr Schuster-McFadyen pleaded guilty to all charges set out in the indictment, it is not open to him to now refute the offending conduct as described in the indictment. That is the basis upon which he was convicted and sentenced.
31.I should also point to the decision of the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649. That was a case involving a deportation decision by this Tribunal. Fisher and Lockhart JJ said, at 653:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.
32.As the Full Court said in Daniele’s case, I can properly look at the circumstances surrounding the commission of the offence but only for the purpose of enabling me to make my own assessment of the nature and gravity of Mr Schuster‑McFadyen’s criminal conduct. It cannot be for the purpose of assessing the propriety of the conviction or the fairness of the trial. What Mr Schuster‑McFadyen seemed to be asking me to do was to accept his altered view of the offending rather than simply look at the circumstances surrounding that offending. I decline to do so. Furthermore, although Mr Schuster-McFadyen said that he was being stupid and he could have handled it better, that does not assist him insofar as the seriousness of his conduct in the circumstances described above is concerned.
33.By way of mitigating circumstances, Mr Schuster-McFadyen claimed that he suffered from attention deficit hyperactivity disorder (ADHD). In fact he reported this to a health worker in immigration detention on 19 July 2011. In his oral evidence he said that the family doctor diagnosed ADHD when he was a child although he never started treatment. Mr Schuster-McFadyen confirmed that he had never been prescribed medication for this disorder. Without a proper diagnosis, it is not possible for me to simply accept what Mr Schuster-McFadyen says about ADHD. I cannot take it into account without proper medical evidence.
34.On 26 July 2011 Mr Schuster-McFadyen was examined by a psychologist at the immigration detention centre. He sought the referral as he was trying to manage his low frustration tolerance (LFT). This arose following a number of events that took place in the detention centre which made him angry and which caused him to react physically. On 28 July 2011 he attended a training/counselling session on LFT with the psychologist. However this does not appear to have been subsequently followed through. In my opinion, if Mr Schuster-McFadyen does suffer from LFT, which I accept is likely given the nature of his conduct to which I have referred below, that nevertheless does not go to mitigation because, although aware of this problem, there was no evidence that he previously sought counselling or medical assistance for that condition.
35.Given the above circumstances regarding Mr Schuster-McFadyen’s serious offending, I find that Mr Schuster-McFadyen was involved in violent crimes which are of a very serious nature. The mitigating factors referred to above do not in any way excuse Mr Schuster-McFadyen’s conduct. Nor does the fact that he was a heavy smoker of cannabis. There was no evidence before me that he had at any time sought medical assistance to overcome his drug habit. Therefore, I find that this factor weighs heavily against Mr Schuster-McFadyen when determining whether to exercise the Minister’s discretion in s 501(2) of the Act.
RISK OF RECIDIVISM
36.The second limb of the primary consideration dealing with the protection of the Australian community requires me to examine the risk that the offending conduct may be repeated. Paragraph 10.1.2(1) of the Ministerial Direction provides that a person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending. The factors said to be relevant to this assessment are:
(a)a recent history of convictions;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
37.Mr Schuster-McFadyen’s history of criminal conduct since arrival in Australia is substantial, even if many of the offences can be described as being minor in nature. These matters are in addition to the serious offences which I have already dealt with above. They are set out in the table below.
DATE/COURT
OFFENCE
CONVICTION
15 March 2005
Brisbane Magistrates Court
Commit Public Nuisance (on 31/12/2004)
No conviction recorded fined $100
8 December 2005
Brisbane Magistrates Court
Possessing dangerous drugs (15/5/2005)
No conviction recorded fined $300
16 March 2006
Brisbane Magistrates Court
Possessing dangerous drugs (22/2/2006)
Commit Public Nuisance (22/2/2006)
Contravene direction or requirement (22/2/2006)
Obstruct Police Officer (22/2/2006)
No conviction recorded Recognizance $150 and to be of good behaviour for six months.
Drug diversion, no conviction recorded, fined $500
5 September 2006 Brisbane Magistrates Court
Breach of recognizance imposed on 16/3/2006
(re possessing dangerous drugs
Recognisance forfeited $150. Resentenced for original offence. No conviction recorded. Recognizance $150 and be of good behaviour for four months, drug diversion
16 November 2006 Brisbane Magistrates Court
Commit Public Nuisance (17/10/2006)
Convicted and fined $150
22 November 2006 Brisbane Magistrates Court
Wilful damage by graffiti (15/8/2006)
Commit Public Nuisance (4/8/2006)
Wilful damaged (between 27/7 and 29/7/2006)
One penalty imposed convicted and fined $720 restitution $240
16 February 2007 Brisbane Magistrates Court
Commit Public Nuisance (2/2/2007)
Convicted and fined $400
27 February 2007 Redcliffe Magistrates Court
Contravene Direction or Requirement (11/1/2007)
One penalty with other matters dealt with on this date no conviction recorded. Fined $350
27 February 2007 Redcliffe Magistrates Court
Possessed tainted property (4/1/2007)
One penalty with other matters dealt with on this date. No conviction recorded. Fined $350
12 March 2007
Redcliffe Magistrates Court
Possessing dangerous drugs (6/2/2007)
Possess utensils or pipes etc. that had been used (6/2/2007)
Commit Public Nuisance (13/2/2007)
One penalty imposed convicted and fined $850 Convicted and fined $400
30 April 2007
Brisbane Magistrates Court
Trespass-entering yard or place for business (26/4/2007)
Convicted and fined $150
3 October 2007
Brisbane Magistrates Court
Trespass-entering or remaining yard or place for business (15/9/2007)
Convicted and fined $100
21 November 2007
Brisbane Magistrates Court
Possessed tainted property (27/8/2007)
Failure to appear in accordance with undertaking (11/9/2007)
unauthorised dealing with shop goods (maximum $150) (9/6/2007)
Penalties on each charge convicted and fined $150 and convicted and fined $200
21 November 2007
Brisbane Magistrates Court
Commit Public Nuisance (22//7/2007)
Contravene Direction or Requirement (6/7/2007)
Trespass-entering or remaining dwelling or yard (15/8/2007)
Convicted and fined $300
and
Convicted and fined $150
1 April 2008
Brisbane Magistrates Court
Assault Police Officer (11/2/2008)
Obstruct Police Officer (11/2/2008)
One penalty imposed. Convicted and fined $400
11 June 2009
Brisbane Magistrates Court
Breach bail condition (8/6/2009)
Conviction recorded and fined $200
14 July 2009
Brisbane Magistrates Court
Possessing dangerous drugs (22/5/2009)
Conviction recorded fined $200
11 September 2009
Brisbane Magistrates Court
Wilful damage (on or about 2/5/2009)
Drunk or disorderly in premises to which a permit licence relates (4/8/2009)
Conviction recorded fined $300
Conviction recorded fined $150
25 September 2009
Brisbane Magistrates Court
Commit Public Nuisance (6/9/2009)
Conviction recorded fined $150
24 March 2010
Brisbane Magistrates Court
Possessing dangerous drugs (on 12/3/2010)
Conviction recorded fined $150
22 November 2010
Brisbane Magistrates Court
Commit Public Nuisance (1/11/2010)
Possess utensils or pipes etc that had been used (25/10/2010)
Possessing dangerous drugs (25/10/2010)
Conviction recorded fined $400 and
Conviction recorded fined $500
29 November 2010
Sandgate Magistrates Court
Contravene Direction or Requirement (1/11/2010)
Conviction recorded fined $200
10 January 2011
Brisbane District Court
Breach of suspended sentence imposed on 25 November 2009
Breach proven suspended sentence extended three months.
38.The first thing that is apparent from the long list of offences committed by Mr Schuster‑McFadyen is that within four months of being released on bail in January 2009, he had committed a breach of his bail conditions. He committed the offences of wilful damage and possession of dangerous drugs in May 2009 and was convicted of a breach of his bail conditions in June 2009. Quite plainly, the fact that he was on bail at the time awaiting trial on indictable offences did nothing to alter his criminal behaviour. He was also convicted of committing public nuisance and being drunk or disorderly in September of that year. Furthermore, despite his two year sentence being suspended in November 2009, he was convicted of possessing dangerous drugs in March 2010 and committing public nuisance and further drug offences in November 2010. Subsequently, because of the further offending, his suspended sentence was extended for three months. The fact that his sentence had been suspended did not act as a deterrent to Mr Schuster‑McFadyen’s continuing criminal conduct.
39.Something must also be said about Mr Schuster-McFadyen’s time spent on remand. On 2 April 2008 Mr Schuster-McFadyen was separately accommodated for fighting with another prisoner. Mr Schuster-McFadyen is recorded as breaching discipline on 12 April 2008 by using abusive, insulting, obscene, offensive or threatening language. According to the report, correctional staff had unlocked the prisoners and at breakfast Mr Schuster‑McFadyen commenced yelling abuse and asking for butter. When a member of the correctional staff asked him what his problem was, he was abusive, demanding butter. When the correctional officer told him that the facility didn’t have butter because it did not arrive on the previous day, Mr Schuster-McFadyen threatened to stab the correctional officer with the knife he was issued with for breakfast. He threatened to stab the officers if they entered the cell. His explanation for this behaviour was: stupid brain freeze and stupid not thinking. This was regarded as a major breach of discipline. Mr Schuster-McFadyen was moved to solitary confinement on 15 May 2008 because he was fighting with another prisoner. On 21 May 2008, Mr Schuster-McFadyen was found to have a shive concealed within his runners during a cell search. He was moved to solitary accommodation until 18 June 2008.
40.In addition to the convictions recorded in Australia, Mr Schuster-McFadyen has one conviction in New Zealand for shoplifting, prior to him coming to Australia.
41.Mr Schuster-McFadyen’s continued offending even after conviction on serious offences, gives me no confidence at all Mr Schuster-McFadyen will not continue to offend in the future. Although Mr Schuster-McFadyen said that he had received some counselling while in detention for ADHD, there was no evidence that he had undergone a full course of treatment for that disease, if in fact he suffers from it. The same can be said of his LFT. While Ms L Martin, who appeared on behalf of Mr Schuster-Fadyen, said that he should be given a second chance, the above lengthy history quite plainly indicates that he has had more than one chance in the past seven years to alter his behaviour. In fact, despite serious sanctions and spending a lengthy time on remand, there was no evidence before me which would even suggest that Mr Schuster‑McFadyen is likely to change his behaviour.
42.Furthermore, there was no evidence before me that Mr Schuster-McFadyen had undergone any formal rehabilitation program either for anger management, drug abuse or for any other reason. In fact, the recorded history indicates he continued to use drugs after being convicted and, on being taken into immigration detention, he admitted having smoked marijuana two days prior to being apprehended. Although it is not clear whether Mr Schuster-McFadyen’s addiction to cannabis is connected with his often violent and inappropriate behaviour, one might logically make a connection.
43.Even after Mr Schuster-McFadyen was taken into immigration detention, his unacceptable behaviour continued. He complained about the food provided at the centre, stating that it catered essentially for persons of Indian or Middle Eastern origin, including frequent curry. He said he had requested steak but nothing had been done to satisfy his request. One day he climbed onto a roof and broke into the kitchen while kitchen staff were there. He said he wanted to access meat.
44.A report prepared by a mental health nurse dated 19 July 2011 records that Mr Schuster‑McFadyen could not understand why he had been moved to another zone in the centre. It states he takes no responsibility for his actions and historically he has always responded with violence. The report also states Mr Schuster‑McFadyen was feeling angry and he was unable to identify that what he did was wrong. On 21 July 2011 he was seen by a psychologist who reported that he seemed calmed and relaxed and was much happier now that he was getting meat to eat. However, on the following day, a mental health nurse reported that he believed that officers in the detention centre stir him up and want to provoke a response. According to the report, Mr Schuster-McFadyen threatened to jump through into the kitchen area again and was inciting others to do the same to get access to food.
45.In the course of his cross-examination, when asked about those incidents, Mr Schuster‑McFadyen agreed that he shouldn’t have conducted himself in the way that he did and that he should have simply put in request forms for an altered diet. The mental health nurse reported discussing with Mr Schuster-McFadyen his inability to control his anger and his aggressive body language and tone of voice. The detention centre records indicate that he had two sessions with the psychologist regarding anger management and his LFT. However, on 2 August 2011 a mental health nurse reported that he was not prepared to see the psychologist on that day. He did request an appointment with a counsellor.
46.It is abundantly clear to me that without serious intervention and rehabilitation to modify Mr Schuster-McFadyen’s behaviour, his risk of re-offending is significantly high. Furthermore, the reported accounts of incidents involving violence by Mr Schuster-McFadyen towards others makes it reasonably clear that not only is there a high risk that Mr Schuster-McFadyen will resort to criminal conduct in the future, he is also at risk of offering violence to others. These aspects go to the very heart of the objectives of the Act and the Ministerial Direction which is to safeguard the Australian community. I find that the risk of harm to the Australian community should Mr Schuster-McFadyen remain in this country is high. This factor clearly weighs heavily against the exercise of the Minister’s discretion in Mr Schuster-McFadyen’s favour.
WHETHER MR SCHUSTER-McFADYEN WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
47.Mr Schuster-McFadyen was 18½ years of age when he first came to Australia from New Zealand. He was not a minor. Therefore the considerations set out in paragraph 10.2 are not directly relevant considerations and, as is stated in paragraph 9(2) of the Ministerial Direction, should not be taken into account.
LENGTH OF TIME ORDINARILY RESIDENT IN AUSTRALIA, PRIOR TO ENGAGING IN CRIMINAL ACTIVITY OR OTHER RELEVANT CONDUCT
48.Paragraph 10.3 of the Ministerial Direction provides that the longer the period of residence in Australia, the greater the likelihood of significant ties to the Australian community. Therefore, more favourable consideration must be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
49.Mr Schuster-McFadyen’s first appearance before an Australian Court occurred on 15 March 2005 for committing public nuisance on 31 December 2004. He was fined without a conviction being recorded. Nevertheless, that activity clearly bears negatively on his behaviour and it occurred within the first year of arrival in Australia. In addition to that, Mr Schuster-McFadyen’s criminal conduct and activity which bears negatively on his character has continued unabated, even during the period he spent incarcerated on remand, for the entire seven years he has been present in Australia.
50.In dealing with how paragraph 10.3(1) of the Ministerial Direction should be understood, the Federal Court of Australia (Rares J) in Rosson v Minister for Immigration and Citizenship and Another (2011) 191 FCR 390 explained that in applying Clause 10.3(1), there was no reason why, where the person concerned had only been resident in Australia for a short period of time before criminal or other relevant activity occurred, the finding in respect of such conduct could be regarded as unfavourable rather than simply neutral or irrelevant. His Honour said, at 396‑397:
[23] Nor do I accept Mr Rosson’s argument that cl 10.3 prevented the tribunal from giving unfavourable consideration to the length of time Mr Rosson had been ordinarily resident in Australia prior to his commencing to engage in his criminal activity or other relevant conduct for the purposes of cl 10(1)(c). There does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act. I reject the first [g]round of review.
51.Given Mr Schuster-McFadyen’s offending commenced within 12 months of his first arrival in Australia, and that it has continued unabated to the present time, I find that this factor bears unfavourably on Mr Schuster-McFadyen when it comes to determining whether the Minister’s discretion in s 501(2) should be exercised to cancel his visa.
INTERNATIONAL OBLIGATIONS
52.The final primary consideration which I must take into account is any relevant international obligation including, but not limited to, the Convention on the Rights of the Child (CROC) and the non-refoulement obligations contained in the International Covenant on Civil and Political Rights (ICCPR).
the best interests of the child
53.As stated in Paragraph 10.4 of the Ministerial Direction, if there is a child in Australia who is potentially affected by a visa cancellation decision, the decision‑maker must have regard to the best interests of the child. Regard can only be had to this consideration where the child is less than 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
54.Mr Schuster-McFadyen said in evidence that he was engaged to be married to Martika Tofield-Mathews. He said that he commenced a relationship with Ms Tofield-Mathews on 28 May 2010. In her evidence, Ms Tofield-Mathews described herself as an Aboriginal Australian citizen and that she had been together with Mr Schuster-McFadyen since 29 April 2010. Ms Tofield-Mathews said that she was currently 22 weeks pregnant, expecting their child in late November 2011. I had a doctor’s certificate in evidence indicating that Ms Tofield-Mathews was indeed pregnant but there was no evidence of paternity. Accepting that Ms Tofield-Mathews carries Mr Schuster-McFadyen’s unborn child, the question which has arisen in this case is whether, in considering the best interests of the child, such interests apply equally to the child whether born or unborn.
55.Ms Martin submitted that I should follow the decision of Federal Magistrate McInnis in Griffiths v Minister for Immigration Multicultural and Indigenous Affairs (2003) 176 FLR 272. Federal Magistrate McInnis said, at 297:
[104] I do not accept that the best interests of the children would not cover the best interests of a child yet to be born though conceived. It seems artificial to ignore the United Nations Convention and/or interpret it in such a narrow way that it would be confined to a “living child”.
56.In my opinion, Griffiths’ case is distinguishable from the matter before me. It is important to bear in mind that the Minister personally made the decision in Mr Griffiths’ case. It was not a decision of this Tribunal following the decision of a delegate of the Minister to cancel Mr Griffiths’ visa. The significance of this is that while a delegate of the Minister is subject to the Ministerial Direction (s 496(1A)), the Minister is not required to consider his own directions. As far as the decision in Mr Griffiths’ case is concerned regarding the unborn child, the issues paper which was before the Minister merely stated that Mr Griffiths did not have any children. Therefore, the Minister did not take into account the best interests of the unborn child other than to take account of his de facto spouse’s pregnancy in what was referred to as other considerations.
57.Mr Griffiths’ case went on appeal to the Full Court of the Federal Court of Australia (Black CJ, Dowsett and Jacobson JJ) which delivered an unreported decision on 13 February 2004 (Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22). The Full Court referred to the four separate bases upon which Federal Magistrate McInnis made his decision. The first and third of those bases appeared to be the only ones considered for the purposes of the appeal because, as the Full Court said, only the first and third grounds were relied on in the respondent’s oral submissions to support Federal Magistrate McInnes’ decision. Those two grounds related to the Minister failing to give reasons for his decision to cancel Mr Griffiths’ visa and the fact that the failure to give reasons and the decision which followed attracted the Wednesbury Principle regarding unreasonableness. The Full Court found in favour of the appellant on the ground that the Minister’s decision did not attract the Wednesbury Principle as the decision was open to the Minister on the material before him. However, and although not argued by the respondent in Griffiths’ case, the Court nevertheless dealt with the second and fourth bases of Federal Magistrate McInnes’ decision which concerned the interests of the unborn child. This aspect of the appeal was not essential for the Full Court’s decision and its remarks are clearly obiter dicta. The Full Court said, at [32].
[32] ... Both of them [the second and fourth bases of the Federal Magistrate’s decision] rested on the proposition that the failure to deal with the interests of the unborn child under the heading that dealt specifically with the ‘Best Interests of the Children’ in the issues paper gave rise to jurisdictional error. But the short answer to this proposition is that this issue was dealt with elsewhere in the issues paper, in particular at paras [71] and [72] under the sub-heading dealing with the interests of the de facto spouse and there is, in any case, no reason to suppose that it was not considered by the Minister.
58.Decisions of this Tribunal have subsequently referred to the passage I have quoted above and said that implicit in that statement is the fact that the Minister was not obliged to treat the best interests of the unborn child as a primary consideration. With respect, I disagree. In my opinion, that passage does not deal with whether the interests of an unborn child should be a primary as opposed to a secondary or other consideration. The Minister was not applying the Ministerial Direction (at that time Direction No 21) although there was a reference to other considerations in the issues paper on which the Minister acted. In fact the Full Court pointed out that the issue before it was whether a failure to deal with the interests of the unborn child under the heading Best Interests of the Children in the issues paper gave rise to jurisdictional error in the sense that the Federal Magistrate failed to take into account a relevant consideration. The Full Court simply answered that by stating it was dealt with elsewhere and therefore no jurisdictional error arose.
59.It should be remembered that basis for requiring the interests of the child to be considered arises because Australia is a signatory to the CROC. Being a signatory to the CROC does not necessarily mean that the CROC forms part of the domestic law of Australia. In fact, as Deputy President SA Forgie made clear in Ieng Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339, it does not. She referred to the High Court of Australia’s decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 where the majority said that although the ratification of a Convention is a positive statement by the Executive Government that the Executive Government and its agencies will act in accordance with the Convention, the provisions of the Convention do not form part of Australia’s domestic law. The only reason why this Tribunal must consider the CROC is because the Ministerial Direction expressly states that the Tribunal must consider the best interests of the child as described in the CROC. The Ministerial Direction at paragraph 10.4(1) provides that it is reflecting Australia’s obligations under the CROC. If there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child. Paragraph 10.4.1 of the Ministerial Direction then sets out the considerations which are relevant when examining the best interests of the child under the CROC. Paragraph 10.4.1(1) of the Ministerial Direction states:
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
60.This statement simply reflects Article 1 of the CROC which provides:
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
61.Paragraph 10.4.1(2) also provides that the best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of the Direction. The remaining subparagraphs under paragraph 10.4.1 deal with the way the CROC is to be applied when considering the best interests of the child for the purposes of applying the Ministerial discretion set out in s 501(2) of the Act.
62.In my opinion, consideration of the best interests of the child in accordance with the Ministerial Direction requires me to consider only the interests of a child who has an independent existence from its mother. In other words, it applies only to a child which has already been born. That is because of the combination of what is stated in Article 1 of the CROC and what is set out in the Ministerial Direction dealing specifically with Australia’s obligations under the CROC. Article 1 defines a child as every human being below the age of 18 years. Deputy President Forgie has analysed the expression human being in detail in her decision in Re Ly (see paragraphs [70] – [74]). It is clearly a reference to a person with a discrete and independent existence. While I accept there are references to unborn children in the preamble of the CROC, the combination of Article 1 and the Ministerial Direction makes it clear to me that what was intended in the Ministerial Direction was to consider only the interests of a child which has already been born. Otherwise, all of the matters set out under paragraph 10.4.1 would simply be irrelevant for the purposes of considering the Ministerial Direction. They deal with a person who has a separate existence from its mother. That is not to say that consideration ought not be given to a pregnant spouse or de facto spouse as a relevant consideration. However, it does not require consideration under the primary consideration dealing with international obligations.
63.Deputy President Forgie also referred to the specific recognition in the ICCPR of unborn children. I agree with her that it is questionable whether the ICCPR has any status different to that accorded to a Convention. However, providing for specific recognition to unborn children in particular circumstances simply amplifies the fact that the general provisions dealing with children refer to a child who has an existence separate from its mother and which has become a human being as that expression is understood at common law.
In my opinion, the same reasoning applies to the Universal Declaration of Human Rights (UDHR) and in particular Article 16(3), which provides that the family is a natural and fundamental group of society and is entitled to protection by society and the state. Therefore, I find that the primary consideration regarding relevant international obligations is not one which is directly relevant to Mr Schuster-McFadyen’s case.
OTHER CONSIDERATIONS
64.As is set out in paragraph 11 of the Ministerial Direction, other considerations, although not listed amongst the primary considerations, may be relevant and if so, I must consider them. These considerations are given less weight than that given to primary considerations.
family ties and the nature and extent of relationships
65.Mr Schuster-McFadyen’s closest relationship and tie is plainly Ms Tofield‑Mathews, his fiancée. She currently lives in Brisbane. Although they were renting a house in Brisbane prior to Mr Schuster-McFadyen being taken into immigration detention, Ms Tofield-Mathews said that they had to relinquish the house as they could no longer pay the rent. She is plainly financially dependent on Mr Schuster-McFadyen. They have been in a close relationship for something in excess of one year and, as already mentioned above, Ms Tofield-Mathews is pregnant with Mr Schuster‑McFadyen’s child. Ms Tofield-Mathews was working prior to her pregnancy. She explained that she had a reasonably large extended family but was not in contact with all of them on a regular basis. She said her father and most of her family lived in Sydney and she did not know the precise whereabouts of her mother at that time although she was in Brisbane when last seen two to three months previously. She apparently had more contact with one of her sisters than she did with the others. That sister also lives in Sydney.
66.Mr Schuster-McFadyen explained that he had a very large family, some 17 all up, many of which were half-brothers and half-sisters. He did not know the whereabouts of his father who he said was roaming around. His father was abusive towards him. He did not get on with him and had no contact with him. His mother lives in Upper Hutt, which is a short distance out of Wellington. He has some six family members in Australia but it appears the only contact he has is with his sister, Florence Schuster. She currently resides at Morayfield, north of Brisbane where she lives with her husband and two sons. She said that she and her husband were employed full time and had the capacity to assist Jason financially if he needs it. She said she was in regular contact with Jason. She also said that she travelled to New Zealand reasonably frequently. She was last back in New Zealand in October 2010. Ms Schuster had met Ms Tofield‑Mathews, but only about two weeks prior to her giving evidence.
67.It is quite clear that Mr Schuster-McFadyen has a number of family ties and other important relationships with persons in Australia. However, except for Ms Tofield-Mathews and his sister Ms Schuster, there is very little contact with any other members of his family. Nevertheless, I agree with the submission of Ms J Cumming, who appeared on behalf of the Minister, that the extent of his family ties and the nature and extent of other relationships is a consideration which weighs in favour of the Minister not cancelling Mr Schuster‑McFadyen’s visa.
age and health
68.Mr Schuster-McFadyen is some 25 years of age and, except for his drug addiction and possible ADHD, is in good health. If Mr Schuster-McFadyen should require medical treatment and were compelled to return to New Zealand, I have no doubt that he could readily obtain proper medical treatment for his condition if that became necessary. Similarly, I have no doubt that New Zealand has a variety of programs to assist people with drug addiction.
links to New Zealand
69.Although Mr Schuster-McFadyen gave evidence that he had some 11 brothers and sisters in New Zealand and that his mother lived a short distance north of Wellington, he said he had little if any contact with them. He indicated that he had lost contact with his mother. However, given that Ms Schuster appears to maintain contact with their mother, it seems to me it would not be very difficult for Mr Schuster-McFadyen to regain contact with his mother and any other brothers or sisters if he wanted to do so. It goes without saying that conditions in New Zealand are very similar to those in Australia. He has lived in New Zealand for 18 of his 25 years. I accept Ms Cumming’s submission that this factor weighs in favour of the Minister exercising his discretion to cancel Mr Schuster-McFadyen’s visa.
hardship to mr schuster-mcfadyen or immediate family members in Australia
70.The significant hardship which would be experienced both by Mr Schuster-McFadyen and Ms Tofield-Mathews would arise if she were not to go to New Zealand with him, if he were to be returned. Although Mr Schuster-McFadyen said in cross-examination that Ms Tofield-Mathews would accompany him to New Zealand if he were forced to go, she did not seem as positive as he was when asked the same question. This was clearly an emotional decision for her and she explained that it was a real shock and she didn’t quite know what decision she would make. She was concerned that the father of her child would not be here with her for the birth and the prospect of having the child brought up without a father. She also believed that she was good influence on Mr Schuster-McFadyen and could keep him out of trouble if they were together. She said he had quietened down a lot since they were together. Ms Tofield-Mathews was clearly of the opinion that her baby needed a father and she had to consider whether she would go with him to New Zealand if his visa remained cancelled. She described it as being very traumatic and hard to comprehend.
71.Mr Schuster-McFadyen said in evidence that he had obtained a licence to do asbestos clearance work and that although his employment prospects would not be as good in New Zealand, there was as much asbestos clearance work to be done in New Zealand as in Australia. Employment support was provided by Mr John Shipway, who was a site supervisor in asbestos clearance work and for whom Mr Schuster-McFadyen had worked over the past three years. In a letter which was taken into evidence, Mr Shipway said that Mr Schuster-McFadyen was highly skilled in his task of asbestos removal and that there was a demand for such workers.
72.Ms Tofield-Mathews explained that because of her Aboriginal background, she needed to remain in Australia and in contact with her extended family. She explained that it would cause her difficulty if she moved to New Zealand, a country which she knew nothing about. However the evidence of Ms Tofield-Mathews’ connection with her family is relatively tenuous and contact was often by phone or necessitated travel from Brisbane to Sydney. It was not the case that her family was in close physical proximity to her and willing and ready to support her should she decide not to go to New Zealand if that became necessary.
73.Overall, I accept that there will be some hardship particularly to Ms Tofield‑Mathews if she is required to relocate to New Zealand, although I do not see such a move as resulting in any significant hardship to Mr Schuster-McFadyen. He seems to have lived independently from his family whether residing in New Zealand or Australia. It is up to him to decide whether he re-establishes family connections in either country. I find this factor only slightly weighs in favour of the Minister exercising his discretion not to cancel Mr Schuster-McFadyen’s visa.
level of education
74.Mr Schuster-McFadyen said in evidence that he was educated to one level below the Year 12 equivalent in Australia. There was no evidence of Mr Schuster‑McFadyen seeking to better his level of education and, should he remain working in the asbestos clearance industry, it would appear to be an adequate level of education for his needs. This factor does not weigh either way when it comes to exercising the Minister’s discretion.
for previous warning about visa cancellation
75.Mr Schuster-McFadyen was not previously advised that his visa could be cancelled if he failed to meet the character test. However, Mr Schuster‑McFadyen’s very extensive history of criminal offending, and re-offending when on bail and under a suspended sentence, indicates to me that a warning, if it had been given, would most likely have been ineffective in any event. Therefore the failure to provide a warning in this case does not, in my opinion, weigh in either direction as far as the exercise of the Minister’s discretion is concerned.
CONCLUSION
76.There was no dispute about the fact that Mr Schuster-McFadyen did not pass the character test thus enlivening the Minister’s discretion to cancel his Special Category (Temporary) visa. This was because he has a substantial criminal record.
77.In exercising the Ministerial discretion provided for in s 501(2) of the Act, I must comply with the Ministerial Direction. That direction sets out matters to which I must have regard in exercising the Ministerial discretion. They comprise two broad categories: primary considerations and other considerations. I must give greater weight to the primary considerations. In doing so, I must bear in mind the objectives of the Act set out in paragraph 5.1 of the Ministerial direction.
78.The first primary consideration is the protection of the Australian community from serious criminal or other harmful violence. This involves examining the seriousness and nature of the offending conduct; and the risk that the conduct may be repeated. I have found that Mr Schuster-McFadyen was involved in violent crimes of a very serious nature. I have also found that the mitigating factors submitted by Mr Schuster-McFadyen do not excuse his behaviour. It necessarily follows that this consideration weighs heavily against the exercise of the Minister’s discretion in his favour. Mr Schuster-McFadyen’s criminal record discloses a deplorable disregard for the law. His offending continued while on bail and after being given a suspended sentence for his serious crimes. He was also involved in violence while on remand and again while in immigration detention. I have therefore found that the risk to the Australian community is high should Mr Schuster-McFadyen remain in this country. This factor also weighs heavily against the exercise of the Minister’s discretion in his favour.
79.Mr Schuster-McFadyen began offending within the first twelve months of his arrival in Australia and that behaviour has continued unabated over seven years despite numerous convictions. This primary consideration also weighs against the favourable exercise of the Minister’s discretion.
80.The final relevant primary consideration deals with Australia’s International Obligations under various Conventions and the like. Although Mr Shuster-McFadyen’s fiancée is pregnant with his child who is due in November 2011, I have found that this is not a matter which falls for consideration as a primary consideration. In my opinion, the CROC, which must be considered only because the Ministerial Direction so mandates, does not apply to an unborn child. For similar reasons, I have found that provisions in the ICCPR and UDHR dealing with an unborn child should not be considered as primary considerations. However, I have considered Ms Tofield-Mathews’ circumstances under the category other considerations.
81.Of the matters which fall within other considerations, the only ones which are in favour of Mr Schuster-McFadyen are: the hardship which will likely result if the discretion is exercised against him; his links to New Zealand; and his family ties to persons in Australia. In fact these considerations are mainly directed towards the hardship and ties Ms Tofield-Mathews has to Australia. However, because I must give less weight to these matters, and two of those considerations only weigh slightly in his favour, they cannot swing the overall balance in favour of Mr Schuster-McFadyen.
82.I find that the Minister’s decision dated 9 June 2011 to cancel Mr Schuster-McFadyen’s visa was correct. I affirm that decision.
I certify that the eighty-two [82] preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon FiceSigned: .......[sgd].................................................................
E. Montalto, AssociateDate of Hearing 8 August 2011
Date of Decision 19 August 2011
Counsel for the Applicant Ms L. Martin
Solicitor for the Applicant Florin Burhala LawyersSolicitor for the Respondent Ms J. Cumming, Clayton Utz
1
9
0