Smith and Minister for Immigration and Border Protection - [2013] AATA 687

CATCHWORDS – MIGRATION – visa cancellation – character grounds – violent behaviour - risk to the Australian community – decision affirmed.

DECISION AND REASONS FOR DECISION [2013] AATA 687

ADMINISTRATIVE APPEALS TRIBUNAL    )
  )          2013/3287
GENERAL ADMINISTRATIVE DIVISION     )

ReWILLIAM SMITH
Applicant

AndMINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  26 September 2013
Place:  Melbourne

Decision:The Tribunal decides to affirm the decision of the respondent dated 27 June 2013 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

_(sgd) S A Forgie_
Deputy President

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Williams v Minister for Immigration and Citizenship [2013] FCA 702

Acts Interpretation Act 1901
Legislative Instruments Act 2003, ss 5, 13
Migration Act 1958, ss 5, 29, 31, 32-38, 499, 501, 501G
Summary Offences Act 1966 (Vic), ss 3, 9, Sch 1

Migration Regulations 1994

Direction no. 55 – Visa refusal and cancellation under s 501.

REASONS FOR DECISION

Mr William Hamish Smith was born on 18 February 1993 in New Zealand. He first came to Australia on 27 January 2006. As a New Zealand citizen, he was granted a Class TY Subclass 444 Special Category (Temporary) visa (visa).[1] Since he has been in Australia, he has been convicted of a considerable number of offences in the Children’s Court and in the County Court of Victoria. On 27 June 2013, a delegate of the then Minister of Immigration and Citizenship (Minister) cancelled that visa under s 501(2) of the Migration Act 1958 (Act). Mr Smith has applied for review of the Minister’s decision.
[1] Migration Act; s 32 and Migration Regulations 1994, r 1219

I have summarised the evidence in some detail in the Attachment to these reasons and have also referred to it in the following paragraphs in coming to my decision. Having regard to the Minister’s Direction No. 55 made under s 499 of the Act made on 28 July 2012 (Direction), I have decided to affirm the Minister’s decision to cancel Mr Smith’s visa.

In doing so, I recognise that this will be a very difficult decision for his parents to accept. They have stood by him during at least five very difficult years. I also acknowledge that the Minister has, through his solicitor, Mr Brown, obtained a psychiatric report so that all the issues can be examined thoroughly and carefully. This has been particularly helpful given that Mr Smith is still a very young man. He is, however, a young man who finds himself with a long list of very serious offences behind him and who, I have decided, is at high risk of behaving violently and inflicting harm on the Australian community should he be permitted to remain. For the reasons I give below, I have decided that the level of that risk is unacceptable to the Australian community and that risk should not be tolerated by it.

LEGISLATIVE FRAMEWORK

Visas

Under the Act, the Minister may grant permission to a non-citizen (known as a visa) to travel to and enter Australia, to remain in Australia or to do both.[2] There are classes of visas.[3] Some are specified in the Act itself[4] and some are prescribed in the Migration Regulations 1994 (Regulations).[5]
[2] Migration Act; ss 5(1) and 29
[3] s 31(1)
[4] ss 32-38
[5] s 31(3)

Cancellation of visas on basis of visa holder’s failure to pass character test

As Mr Smith held a visa, the provisions of s 501 apply to him. That means that the Minister has power under s 501(2) of the Migration Act to:
“… cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”

The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“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
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i)     the person’s past and present criminal conduct;
(ii)     the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)      engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”

A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is
2 years or more; or
(e)…”

The term “imprisonment” means “… any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence.[6] There was no suggestion that Mr Smith passes the character test for, without reference to the other terms of imprisonment to which he has been sentenced, the two year term of imprisonment imposed on his conviction for Armed Robbery leads to that outcome.

[6] s 501(12)

Section 501G sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as Mr Smith, who is in the migration zone. The “migration zone” includes mainland Australia.[7] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision.
[7] Migration Act, s 5(1)

The Minister’s Direction

If a person fails the character test, s 501 does not require the Minister to cancel that person’s visa or to refuse that person’s application for a visa. It confers a power on the Minister to cancel or refuse but it is a discretionary power that is subject to limits. The Minister will necessarily delegate power and may give directions to those who exercise that delegated power as well as to those such as the Tribunal who review the exercise of that power. Those directions are given under s 499 of the Migration Act, which provides, in part, that:
“(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) …
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) …
(4) …”

Section 499(2) underlines the principles stated in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[8] (Peko-Wallsend). The boundaries of the exercise of any statutory discretionary power are drawn from the form of the subject-matter, scope and purpose of the legislation in which the power is found. His Honour said:
“… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation in the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”[9] As a rule, the power to give directions and make guidelines is determined by reference to “... the subject matter, scope and purpose of the statute ...”.[10]
[8] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ
[9] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[10] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. This approach accords with the approach to statutory interpretation later endorsed in Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [69]; 381; 855; 509 by McHugh, Gummow, Kirby and Hayne JJ when they said:

Quite apart from these boundaries, there is a practical limitation of another sort on the power of the administrative decision-maker. That is a limitation on the manner in which the administrative decision-maker weighs evidence relating to the matters that are relevant and the weight he or she gives one matter over another. Justice Mason addressed that limitation as well after first setting out the general principle. His Honour said:
“… [I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation …, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. … [A] court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”[11]
[11] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 41-42; 309-310

Within the wider boundaries of the Migration Act, s 499 permits the Minister to determine the weight that will be given to the various considerations to be taken into account in reaching a decision under, in this case, s 501. Even when the Minister has done so and the Tribunal is bound to have regard to it, its role:
“… is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[12]

The Tribunal must consider matters set out in any direction and follow it in considering the particular circumstances of a visa holder and coming to a decision. If it were to be in conflict with the Migration Act, the Migration Act must prevail. This is recognised in s 499(2) of the Migration Act.

[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590, 70 per Bowen CJ and Deane J

The Minister’s Direction: outline of Direction

The Minister issued directions under s 499 on 25 July 2012 in relation to visa refusal and cancellation under s 501 of the Migration Act. It is “Direction No. 55 – Visa refusal and cancellation under s 501” (Direction). The Tribunal must comply with the Direction but the Direction does not require a particular outcome in a particular case.

Paragraph 6.1(1) of the Direction states that the objective of the Migration Act is to regulate, in the national interest, the entry into, and presence in, Australia of non-citizens. Under the heading of “General Guidance”, the Direction states:
“The Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[13]
[13] Direction; cl 6.2(1)

Clause 6.3 sets out principles guiding the exercise of the power. They include the following:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”

Clause 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.”

Clause 8 separates those who are already visa holders and those who are applying for visas. Mr Smith is a visa holder. Therefore, the considerations set out in Part A of the Direction are those that are relevant. In applying those considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[14] Clause 8(3) provides that “Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.” Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[15] I will expand upon the primary and other considerations in the course of considering them.
[14] Direction; cl 8(2)
[15] Direction; cll 8(4) and (5)

Before I do that, I need to look at the judgment of North J in Williams v Minister for Immigration and Citizenship.[16] After setting out those parts of the Direction that I have set out above and the considerations as I have done below, his Honour looked at the way in which a differently constituted Tribunal had considered the matter. He said:
“ The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant’s visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, ‘Should the discretion to cancel the visa be exercised?’
This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is ‘whether the risk of future harm by a non-citizen is unacceptable’. This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant’s visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact decided.”[17]
[16] [2013] FCA 702
[17] [2013] FCA 702 at [42]-[43]

To understand the process as explained by North J, it is necessary to go back to the words of cl 7(1) as a whole and the particular words of cl 7(1)(a) as well as those in cl 7(1)(b). The question to be decided is that in cl 7(1)(b) but it is only answered after taking into account the considerations set out in Part A or B as appropriate and being informed by the principles in cl 6.3.

It may be thought that there is some overlap between the question asked in [7(1)(b)] and the considerations found, for the purposes of this case, in Part A but, as is implicit in his Honour’s judgment, there is not. I will take as an example, the primary consideration set out in cl 9.1.2, which I set out in full below. For the moment, it is enough to note that the clause is headed “The risk to the Australian community should the person commit further offences or engage in other serious conduct”. It goes on to state that “In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community …” (emphasis added), decision-makers “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. …”. The clause goes on to require that, “In making this assessment, decision-makers must have regard to, cumulatively …” considerations that are then set out.

In the previous paragraph, I have highlighted the issue upon which a decision-maker must focus under cl 9.1.2. It is the very question that a decision-maker must answer under cl 7(1)(b). Therefore, in deciding that question under cl 7(1)(b), “account”[18] must be taken of the considerations that are set out in cl 9.1.2 after being informed by the principles in cl 6.3. That means that the decision-maker must give thought to the matters set out in cll 9.1.2(1)(a) and (b). In outline, those matters relate to the nature of the harm and the likelihood of the person’s engaging in further criminal or other serious conduct. A decision-maker may choose, as I do, to discuss those matters one by one and to consider all of the oral and written material in light of each matter before asking and then answering the question posed by cl 7(1)(b).
[18] When a decision-maker is required “to take account” of something, its meaning will depend on the context. There are two possible meanings: “‘To take into account’ in the sense of including figures in a mathematical calculation is one thing; ‘to take into account’ in the sense of paying attention to a matter in the course of an intellectual process is quite another thing. …”: Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86; Lord Hewart CJ and Avory and Sankey JJ at 99 per Lord Hewart CJ. It is clear from the wording of the Direction that the Minister intended the expression to be used “the sense of paying attention to a matter in the course of an intellectual process” rather than in an arithmetical sense. The judgment of North J in Williams v Minister for Immigration and Citizenship makes it clear that this is the meaning in which it should be understood.

It must be remembered, though, that the question that is asked in cl 7(1)(b) and that is repeated in the opening words of cl 9.1.2 is not answered when addressing each of the matters at cl 9.1.2. That is to say, the question “whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community …” is not asked or answered twice because it is not asked or answered when giving thought to the evidence in light of the considerations or matters set out in cl 9.1.2. It is a matter of which account must be taken – or thought about – in the context of cl 7(1)(b), when account must be taken of all of the considerations in Part A and not only those in cl 9.1.2. That thought must be given by a decision-maker who is “informed by” the principles in cl 6.3. Those principles and the other considerations draw into the mix of matters to which a decision-maker must have regard matters relating to the visa holder and members of the visa holder’s family. It is clear from a reading of cll 6.3 and 7(1) that what is judged to be an unacceptable risk of future harm is not assessed by reference to the matters in cl 9.1.2 alone.[19]
[19] I have interpreted the Direction as if it were an Act of Parliament because it is a Legislative Instrument within the meaning of s 5(2)(b) of the Legislative Instruments Act 2003 (LI Act) and there is no contrary intention in the Direction or in the Migration Act under which it is made that the provisions of the Acts Interpretation Act 1901 do not apply to it: LI Act; s 13(1)(a).

CONSIDERATION

There are four primary considerations: protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia; the best interests of minor children in Australia; and whether Australia has international non-refoulement obligations to the person.[20]
[20] Direction; cl 9

Protection of the Australian community

Clause 9.1(1) of the Direction repeats the sentiments already expressed in cll 6.1(1) and 6.3(1). It goes on to direct decision-makers to give consideration to the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.[21] The Direction goes on to expand upon each of these considerations.
[21] Direction; cl 9.1(2)

A. Direction 9.1.1: Nature and seriousness of Mr Smith’s conduct to date

The first consideration is dealt with in cl 9.1.1, which sets out ten factors to which a decision-maker must have regard in considering the nature and seriousness of the person’s criminal offending or other conduct to date. Of those factors relevant in this case are the following:
“a) The principle that, without limiting the range of offences that may be considered serious, violent … crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeat offending;
h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
j)…”.

Reference is made in cl 9.1.1(d) to certain paragraphs in s 501. Section 501(6)(c) does not take the matter much further for it requires an assessment of whether a person is not of good character by reference to his or her past and present criminal and general conduct. That is inherent in the matters I must consider. Section 501(6)(d) is more specific but only two may be relevant in this case. They are:
“For the purposes of this section, a person does not pass the character test if:
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)-(iv)…
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.”
Mr Smith, I find, had his first brush with the law in April 2008 when he was 15 years of age. That led to his being charged with Breach of a Trespass Order made by the Principal of the Hoppers Crossing Secondary College that he had been attending sporadically until that time. He was given an official caution the first time that he breached the order and was interviewed the second. Less than two months later in June 2008, Mr Smith was charged with Criminal Damage and Unlawful Assault. He was still only 15 years of age but he and another male went onto a property where they hit a victim as he tried to get away from them. The victim was the father of a boy for whom they were looking but he had told them that he did not know where his son was.

There follows a steady pattern of stealing from shops, armed robbery, assaults, damage to property and causing and threatening injury as well as other offences including being drunk in a public place, affray, theft and robbery. I have set out the details of those offences in the Attachment to these reasons together with the convictions that followed and the sentences imposed on Mr Smith. They show a steady and regular pattern of offending throughout 2009, 2010, 2011 and 2012 interrupted only by his being on remand, detained in a Youth Justice Centre or in prison. On the basis either of the material to which I have referred in the Attachment or Mr Smith’s evidence, which I have also set out there, or both, I find that each of the offences was committed while Mr Smith was drinking or after he had been. Some, such as shop stealing, were committed in order to enable him to obtain alcohol. Others led to an outcome that meant that he obtained cash and property, such as mobile phones. Obtaining money was not always his primary motive, though. In relation to his assaulting a 21 year old student on 9 May 2009, Mr Smith later said that he was involved in that because he “wanted to rob someone”.[22] In relation to the assault of a former Laverton High School student in May 2010, he “bash[ed] him to take everything he’s got. ‘This cunt’ use to give me shit”.[23] At other times, such as that in March 2010 when he robbed a 17 year old at the Werribee Plaza of his mobile phone and iPhone, his reasons were that he picked on that victim because he had fallen out with the victim’s friends. Had he not been drunk, however, he would never have done it.
[22] Supplementary G documents at 151
[23] Supplementary G documents at 149

Alcohol, I find, was at the heart of Mr Smith’s offending behaviour while he was in the community but it was anger that was at the heart of his offending behaviour when he was in the Melbourne Youth Justice Centre (MYJC), the Melbourne Remand Centre (MRC) and the Port Phillip Prison. He had not consumed alcohol in those places at the time he was involved in further incidents. Again, I have set out details of that behaviour in the Attachment. It has involved assault and, more recently in the Port Phillip Prison, destruction of property whether by smashing it as in the case of a kettle, television and unit stereo on 5 August 2013 or marking his mattress and wall frames with graffiti on 15 January 2013. He has resisted and hit prison officers who were taking him to 23 hour lockdown after he had destroyed the property. This is consistent with earlier behaviour in the MYJC on 21 April 2011 when he narrowly missed staff members when he threw a chess set and upended property. That is not to say that Mr Smith intended to hurt those staff members on that occasion but it is to say that he acted without thought for their safety or for the integrity of the property.

I have referred only to some of the incidents I have set out in detail in the Attachment. Looked at overall, the pattern of Mr Smith’s offending behaviour to be gleaned from all of those incidents is serious. It is serious because it is continuing and the offending behaviour often involves violence. It is serious because it is not possible to isolate one element as the trigger point for every incident and as an element that can be isolated and addressed. Anger, either with or without alcohol, is consistent.

It is serious because Mr Smith has not responded to the more rehabilitative approach taken by the justice system when he was a juvenile. As an example, I find on the basis of the material that I have set out in the Attachment that arrangements were made for him to start a BRAVE programme on his release in October 2010. On 25 October 2010, he had started a Certificate I Automotive course at Laverton. His father has spoken of his son’s evident pride in going to that course for a week or two but his son could not maintain his good behaviour beyond 31 October 2010. Both course and programme fell by the wayside as a result. Similar arrangements were made for Mr Smith to resume the Certificate I Automotive course at Laverton, to be helped by the Whitelion Employment Service (Whitelion) to find employment and to attend a BRAVE programme scheduled to begin on 4 June 2011. Again, Mr Smith could not keep away from trouble and this led to his conviction that, ultimately, led to his finding himself in an adult remand centre, the MRC, and later an adult prison, Port Phillip Prison.

Mr Smith’s behaviour is serious because he is unable to understand that it is not only behaviour that is violent to the person that is not tolerated by the community but also behaviour that is destructive of property or that takes another’s property. From his answers regarding the incident on 5 August 2013 at the Port Phillip Prison in which he smashed his kettle, television and unit stereo in an attempt to gain attention for a fellow inmate whom he could not see but thought might be unconscious, it is apparent that he thinks that money will deal with that. He has not taken to heart his father’s words that every time he takes someone’s property, he takes a little of their soul. He has not learned from being in lockdown for 23, rather than 22, hours as a result of the destruction of the property, that it is behaviour that is unacceptable.

Mr Smith was in lockdown when he was notified of the decision cancelling his visa on 4 July 2013. He was not warned that a decision of this sort might be made before it was in fact made. He lodged an application for review on 15 July 2013. It might be expected that, as he was asking for the Minister’s decision to be reviewed, he would make sure that he showed how he had gained some maturity and that the risk of his offending again was reduced. Mr Smith told me at the hearing that he is grown up now. The responses to his situation since he lodged his application for review have not been those of a grown up. I say that even though I understand that Mr Smith thinks that he is making a mature response to his situation when he destroys property rather than hit or hurt someone. A response that does not harm a person is certainly better than one that does but a response that destroys property is a response that shows disregard for other people’s property and therefore a disregard and disrespect for those people. It is a response that says that his immediate need is all important and that their concerns and interests are of no consequence. The unit stereo was not an item he owned. The kettle and the TV were perhaps in the same category. It is not enough to pay for the damage through paying a fine just as it is not enough to give his parents $500 to pay for the damage he did to their house at an earlier time.

It might well be said that it is a difficult situation in which to display a mature response of restraint and compliance with the rules and particularly when he has been subject to lockdown for 22 or 23 hours each day. He is young to find himself in this situation but the chronology I have set out in the Attachment shows that he has not responded to direction in the more rehabilitative environment of the youth justice system. Mr Smith does not appear to be a person who can cope with its constraints but, equally, he has not learned that he has to live within its constraints before he can be relieved of those constraints. He has not learned that lesson even when it was very much in his interests that he do so in order to give his application for review its very best chance of success. If he cannot do it when the potential reward is so great, his conduct, when viewed against a background of violent behaviour and his lack of regard for the rules,[24] becomes a matter for serious concern.

B.Direction 9.1.2: The risk to the Australian community should the person commit further offences or engage in other serious conduct
[24] I have considered Mr Smith’s attitude to rules at [129] below.

Clause 9.1.2(1) of the Direction states:
“In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person re-offending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).”

While Mr Smith continues to drink, the risk that he will harm others is high. Violence to persons has been the pattern of his offending behaviour when he is drinking. What is equally worrying is that he has shown violent behaviour and destructive behaviour when he has been in custody of some sort and alcohol has not been available. His violence has led to one of his victim’s suffering a broken nose and another had serious injuries including a knocked out tooth and a fractured cheek bone. Others have been threatened with weapons including a pole, a broken bottle and, in his third reported offence, a pair of bolt cutters.

Generally, I find, the persons upon whom he inflicts violence fall into two categories. One category comprises those who are known to him or who are persons he knows to have a connection with someone he knows. The person might be the father of a person he is looking for or a former student at the Hoppers Crossing Secondary College.

The second category of person comprises those who have been given responsibility for minding and dealing with property or with good order or both. Falling into the first group of this second category are shop assistants charged with responsibility for their employers’ property. One was threatened with a pole in November 2010 and another with a broken bottle on 17 June 2011 while Mr Smith and his companions took property from the shops. Violence does not always accompany his stealing from shops for another shop assistant was not threatened with a weapon on 19 April 2010 although he was challenged verbally. Staff members at the MYJC and officers at the MRC and at Port Phillip Prison are responsible for keeping good order in those establishments. That fact has not kept him from resisting staff and verbally abusing them at the Port Phillip Prison as recently as 5 August 2013.

There are occasions, however, when Mr Smith has chosen someone at random on whom to inflict violence. The 21 year old student whom he assaulted and robbed on the train on 9 May 2009 is an example.

Several things are worrying about Mr Smith’s behaviour when assessing the risk that he does, or does not, present to the Australian community. One is that he does not see destructive behaviour to property as unacceptable just as behaviour that is violent to a person is unacceptable. It is only recently that he has begun to express remorse for his offences and for the harm that he has caused to the person of his victims. Until then, the reports and assessments do not reveal expressions of regret.[25] On the contrary, a Client Assessment by Victorian Youth Justice prepared on 15 February 2011 reported that Mr Smith’s attitude to his offending was “rather flippant, with no expressed remorse or regret”.[26]
[25] I note that I have referred to various reports and assessments produced in response to summonses issued by the Tribunal under s 40(1A) of the Administrative Appeals Tribunal Act 1975. Some relate to periods in which Mr Smith was a minor. I note that, when read with s 547 of the Children, Youth and Families Act 2005 (Vic), s 552 limits those who may have access to reports such as pre-sentence reports without the consent of the child who is the subject of the report or of that child’s parent. If his consent is required to my referring to those reports in considering his case and in preparing these reasons (and I have not considered whether it is), Mr Smith gave it at the hearing when I raised the issue.
[26] Supplementary G documents at 52

He has tended to blame his alcohol and his being easily influenced by his peers. The latter reason was one he gave as late as 17 June 2011 when he was 18 years of age and he was in the company of juveniles. It takes no account of the incident on 6 August 2010 when he broke two shop windows despite his peers yelling at him to stop. Mr Smith has also put forward his concern for others as a reason for his behaviour. His concern for a mate who, in his eyes, would not stand up for himself on 19 September 2009 led to Mr Smith’s proceeding “…to throw a right hand punch at … [another client at MYJC] connecting with his jaw.” Mr Smith was still using his concern for another inmate on 5 August 2013 as an explanation for his destroying his kettle, television and the unit stereo.

What I find has been missing from Mr Smith’s behaviour over the years since he first breached the Trespass Order back in May 2008 is any regard or respect for the rules of others be they of the school he had been attending, of the community in the form of its laws or, at home, the rules of the family. While I can understand that Mr Smith’s parents blame themselves for much of where he finds himself, I am not as ready to do so. They blame themselves for working night shifts in the early years and not being at home all the time to be with their son. Mr Smith blames himself for being too tough in imposing rules on him. He feels that he chased his son away.

Having read all of the material, and I have summarised it at the Attachment, I find that it is his son who has pushed him away just as he has pushed away the community outside his family. He has pushed them all away by not accepting the boundaries that we must all accept. Those boundaries, of course, vary according to whether they appear in the rules of a family or in the laws of the community but they have a purpose. They are the boundaries that differentiate what is acceptable and what is not. If properly drawn, they enable a person freedom to move and live within them as well as interact with other persons. They provide protection for those to whom they apply as well as limitations. In families, and particularly as children grow up, those boundaries may be renegotiated from time to time. Sometimes it is a process that happens by mutual acquiescence and, at others, by open negotiation. The boundaries imposed by the law are not open for renegotiation in this way. They may be changed and may be changed by force of community views but not by violent transgression of the sort engaged in by Mr Smith.

The need to accept responsibility for his own behaviour is something that the Health Care Co-ordinator from AFHS tried to tell him when Mr Smith was at MYJC. The Health Care Co-ordinator tried to give Mr Smith that guidance in an environment that appears, from the written material that I have, to be an environment that was tolerant of those who behaved poorly. It was tolerant to the extent that staff spent time with people such as Mr Smith explaining why poor behaviour was unacceptable and teaching them strategies to channel anger away from destructive outcomes. Mr Smith did not learn that when he had the opportunity as a juvenile. His recent offences and breaches in prison have not revealed any greater understanding as an adult.

This does not give any confidence that Mr Smith will be able to contain his behaviour within the law when he is released into the community. He reoffended within days of completing the two week programme at the DASWEST Detox Unit from 14 April to 27 April 2009. He has been offered other programmes but has reoffended so that he has either been unable to start the programme or to complete it. That is his pattern and there is no evidence that he will change that pattern.

In reaching that conclusion, I am aware that Mr Smith’s parents are supporting their son. They would do whatever it takes to have him in a position where he stops his offending ways. Mr Smith is convinced that, if his son were to work with him, he would change his habits. The influence of his workmates would bring about that change as a similar situation did for him in his younger days. There is, though, a very big difference between Mr Smith and his father. His father drank to excess at one stage but he never lost control of himself so that he misbehaved. This is a very big difference between him and his son. That raises doubts as to whether Mr Smith would be influenced by those workmates or whether he would find their rules as confining and distasteful as he has found his father’s in the past and those in the custody.

I also have some doubts whether Mr Smith would still be minded to work when he is released from Port Phillip Prison. He is keen now but he has a history of being less keen about work. In Jul 2009, he “… had not demonstrated an eagerness to address this issue.” of employment. He was eager in February 2011 and, in May 2011, Whitelion had found possible employment in a warehouse as that had been Mr Smith’s preferred employment at the time. Despite having employment arranged for him, he did not stay out of trouble. His father has made the same offer in the past and that chance has not kept him out of trouble.

The extent to which Mr Smith can keep out of trouble may not be a matter that he can control or that, with the best will in the world, his family can influence in the short term. Ms Lofthouse had identified deficits in his higher level executive functioning. Dr Walton referred to Mr Smith’s relative lack of insight, his tendency to impulsiveness and his failure to consider the consequences as making a direct contribution to his offending in general and to his aggressive behaviour in particular. On the evidence that I have, these tendencies continue to be in evidence in the latest incidents at the Port Phillip Prison.

These matters lead me to conclude that the risk that Mr Smith will reoffend after his release were he to be permitted to remain in Australia is high. Given the nature of his previous offences, he is likely to show violence either to person or property or, if he does not show that on a particular occasion, is likely to steal the property of others. If he shows violence persons will be injured or property damaged.

Strength, duration and nature of person’s ties to Australia

Clause 9.2(1) directs that:
“Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
iiMore weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”

Mr Smith’s immediate family lives in Australia and has done since 2006. He has lost touch with his friends as they have grown up and moved on to have families. Mr Smith has never been employed and has no ties as an employee.

Best interests of minor children in Australia affected by the decision

Clause 9.3 is concerned with the best interests of any children who are in Australia and are minors and who may be affected by a decision made under s 501. I have referred to Mr Smith’s nephew and niece who are aged two and one respectively. They have had little opportunity to get to know their uncle given their ages and his circumstances. What cancellation of his visa would mean is that they have very little opportunity to get to know him in their formative years as they will remain in Australia with their parents.

International non-refoulement obligations

Clause 9.4 requires me to have regard to international non-refoulement obligations when they are raised either by the applicant or by the material. They do not arise in Mr Smith’s situation given that the place of his return is New Zealand.

Other considerations

Clause 10 of the Direction requires me to take any other relevant considerations into account. The Minister lists considerations that might be relevant in that context in cl 10(1). They are, but are not limited to:
“a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b)Impact on Australian business interests;
c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.”

I find that Mr Smith’s parents have stood by him regardless of what he has done and, as I have said earlier, have supported him throughout and regardless of what he has done. He has chosen to distance himself from them at times but they have never distanced themselves from him. This is apparent from the various Parole Plans and assessments to which I have referred.

I find that Mr Smith wants to be a good son and a good brother and uncle. His older brother has written a letter saying that, when his brother is sober, he is a totally different person. Mr Smith is his best friend, his older brother wrote, and he and his partner and children aged two and one and need him. If Mr Smith were required to return to New Zealand, they would not be able to afford to visit him. Were he permitted to live in Australia, his older brother could help him and keep him occupied at weekends.

Mr Smith’s youngest brother is close to him. He is still at school and has visited him each month since he has been in prison. Mr Smith wants to reshape his life so that he can be a role model for his brother and wants to be in Australia to tell him not to do the things that he has done such as stealing and fighting.

If Mr Smith is required to return to New Zealand, I find that he has no immediate family with whom he has close ties and nobody in the wider circle of family friends and acquaintances. Mr and Mrs Smith would face a difficult decision whether to return to New Zealand with him and their two younger children or to remain in Australia. If they remain in Australia, they will be close to their eldest son, his partner and their grandchildren, and their two youngest sons will be with them. If they go to New Zealand, they will have three of their sons with them but not the eldest and his family.

There are no language or cultural barriers facing Mr Smith in New Zealand. The barriers that he would face would be those that he would face in Australia. That is, he will face barriers in the form of his having to overcome his alcohol issues, having to contain his anger and moderate his responses and he will have to find employment. His mother has found a programme at Bendigo to assist him in starting to overcome those barriers if he remains in Australia.

There is no reason to think that similar programmes do not exist in New Zealand but what will be missing if his parents decide that it is better for the family as a whole to remain in Australia, will be someone who will find out about things for him. Mr Smith has never shown an ability to think about making his own arrangements. That is not a criticism of him but an example of what Ms Lofthouse had identified as deficits in his higher level executive functioning. That is the way he is and his difficulty with higher level executive functioning make it difficult for him to make arrangements for himself. He is limited to responding to circumstances rather than taking steps that assist in creating circumstances that are good for him as well as for others. Another example but of a different type occurred during the hearing when asked to explain why he wants to stay in Australia and why the Minister’s decision should be changed. He had very little to say and said that he was used to answering questions. That makes it very difficult for him to express simple things such as what he needs. Communication of that sort is important at all levels of functioning in the community.

Even if his parents do return to New Zealand with him, Mr Smith’s history is such that there must be doubt whether he would stay with arrangements that they were able to make for him. In the past, when arrangements have been made for him, whether they are to attend a rehabilitation programme such as BRAVE or to gain employment skills by attending, for example a Certificate I Automotive Course at Hand Brake Turn, Mr Smith has not shown the ability to stay with the arrangement.

Conclusion: Is the risk of future harm by Mr Smith unacceptable?

If Mr Smith is required to return to New Zealand, his history suggests that his future, at least in the short term, will be bleak. His past behaviour supports the findings made by Ms Lofthouse as to his ability to function at an executive level. His ability at that level is poor with the consequence that he will not know what to do if his parents do not return at the same time. If his parents do return at the same time, his past history and his behaviour up to the current time support a conclusion that he will not be able to stay with arrangements that they make. His current intentions to do so are good but he has shown in the past that he is not able to translate any good intentions into action that has a good outcome for him and for the community.

The situation is likely to be no different for Mr Smith if he remains in Australia. What will be better, will be the outcome for his family. His parents have worked hard to establish themselves. Mr Smith’s older brother has established roots by starting his own family. His parents will not be faced with the impossible task of having to decide whether to do what they think is best for one of their sons when that might not be the best outcome for their other sons.

Issues of this sort are very real and very distressing for the family. They are, however, only one of the issues to be considered. The question that I must answer takes account of the wider Australian community. Issues such as what is best for Mr Smith and for his rehabilitation are issues that were of central concern when he was in the youth justice system and of concern in the adult system. Issues that are relevant now are those that are set out in the Direction and are directed to whether Mr Smith should forfeit the privilege of remaining in Australia. Forfeiture of that privilege is something quite separate from punishment for his particular crimes. It is not additional punishment.

I have already assessed the risk of Mr Smith’s reoffending if he were permitted to remain in Australia after his release as being high. If he reoffends, I have also come to the conclusion in light of his previous offences and behaviour up to and including his time in CMU, that he is likely to show violence either to person or property or, if he does not show that on a particular occasion, is likely to steal the property of others. If he shows violence persons will be injured or property damaged. His violence in the past has led to some of his victims’ having broken bones as well as other injuries.

Mr Smith may be able to find a clear direction on his release from prison on this latest occasion. He may be able to apply himself to a rehabilitation programme but his past behaviour does not suggest that is likely. He acknowledged in his written statement dated 28 August 2013 that he had not made a full commitment to the two week DASWEST Detox Unit in April 2009 because he was too young and did not have a clear direction or ability to fit in at the time. His acknowledgment is a valuable and worthy one but the problem is that his actions of 5 August 2013 in destroying his kettle, TV and the unit stereo do not support it. Those actions followed closely on the heels of the various incidents in January 2013 including setting his cell on fire and flooding it.

As Dr Walton said, Mr Smith is a “flawed character”. It may be that he will overcome his difficulties as he ages and matures but, at the moment, it is Dr Walton’s view that Mr Smith’s behaviour is younger than his chronological age. There may be a measure of sympathy for him in the community for his difficulties. That sympathy is, however, outweighed by the degree of risk that he presents to the Australian community because of his tendency to violent behaviour when he offends and the high risk that he will reoffend. His violence to others has not been limited to those he knows but has been inflicted on minors, shop assistants as well as, at least in relation to property, his family. It is a degree of risk that is unacceptably high. While Mr Smith was a juvenile, the Australian community tolerated it. When he became an adult and reoffended, it may have been possible to find that it would have continued to tolerate it had he shown mature behaviour first in MRC and later in Port Phillip Prison. Unfortunately, he has not shown mature behaviour of that sort and the degree of risk and potential harm that he presents to the safety of the Australian community outweighs any other considerations. It has now reached a stage where it is unacceptable. Therefore, I affirm the Minister’s decision to cancel Mr Smith’s visa.

BACKGROUND

Early life in New Zealand and coming to Australia

On the basis of Mr and Mrs Smith’s evidence, the sentencing remarks of Judge Thornton and the written evidence, I find that Mr Smith was born in New Zealand. His mother educated him in Maori tradition and culture. In 2006, Mr Smith travelled to Australia with his parents and his elder brother and his two younger brothers. At the time, he was a month or so short of his 13^th birthday. Mr and Mrs Smith had come to Australia seeking improved prospects of employment. Mr Smith found it as a spray painter and Mrs Smith found night work as a night fill manager. She did that for five years but is now second in charge of a supermarket. I understand that both are well regarded in their workplaces. Their eldest son works for the same company as his father. Their third son is having a gap year from school and their youngest is still at school.

Schooling in Australia

Mr Smith attended the Laverton Secondary College when he first came to Australia. At the start, school was not too bad, he said, but then he started not to get along with other students and teachers. He felt that people were picking on him because of his size. His parents took him away from that school after a couple of years when he was in Year 7.

He then attended Hoppers Crossing Secondary College. In his oral evidence, Mr Smith said that the school was all right for a time but he then began to hang around with the wrong crowd. He did not do his school work and did not go to school. The more comfortable he became with his friends, the less he went to school. Initially, they would just “hang around” but as they became more familiar with each other they began to drink and to argue. He was about 14 or 15 years of age at the time. They would drink together three or four times a week at that time, he said. By the time he was 15 or 16, he would drink until he could not remember what had happened twice a week.

Dr Walton had read Ms Lofthouse’s report. He was of the view that Mr Smith is of normal intelligence on the basis that anyone who scores over 70 in a formal IQ test can be described in that way. That means that he is not intellectually disabled when has, as he does, a score above 70. The closer the score is to 70, however, the more likely it may be that a person struggles with literacy and numeracy skills and with hygiene. Their abilities to work are variable.

In his report dated 3 September 2013, he expressed the opinion that Mr Smith is not suffering from a diagnosable mental illness. He would attract the label of having an antisocial personality disorder but said that this meant very little more than saying that Mr Smith has consistently exhibited unacceptable behaviour and has an accumulating criminal record. Mr Smith appeared to be of normal intelligence but neuropsychological testing had revealed deficits in relation to higher level executive functioning. Dr Walton believed that Mr Smith’s “… relative lack of insight, tendencies towards impulsivity and failure to carefully consider the consequences of his actions would make a fairly direct contribution to offending in general and aggressive behaviour, in particular.”[110]
[110] Report at 5

In his oral evidence, Dr Walton again referred to impulsiveness as being a major cause of offending by the young. If they stopped for a moment, they would not do it, he said. Measures that can be learned to mitigate that tendency come, he said, from learning even if a person is a slow learner. Maturation occurs through the passage of time and that helps too. Prisons are filled largely with people of his age and, as they age, the tendency is for many of them to stop offending.

Dr Walton was aware of the incidents that had occurred while Mr Smith has been in prison. He said that most people try to conform with the rules so that they do not have to stay longer than they need but he has not been able to do that. Minor offences are common but not many have the experience of CMU as he has had. That experience is reserved for a select few, he said. It is to be expected that people of Mr Smith’s age will have problems but not many spend the amount of time in CMU that he has done. It is unusual to do so. The regime in CMU causes concern that he will become institutionalised. It is a particularly hazardous environment for him psychiatrically.

A formal alcohol and drug rehabilitation programme in a residential setting is a matter of high priority. If successful, it would reduce the risk of recidivism as his antisocial behaviour has been directly fuelled by substance abuse and obtaining alcohol for person use has been the focus of some of his offending behaviour. To the extent that Mr Smith is suffering from an acquired brain injury, there is a high probability that he would suffer the adverse effects of intoxicating substances to a greater degree than those who do not suffer from such an injury. In Dr Walton’s opinion, though, Mr Smith’s antisocial behaviour is not simply and comprehensively explained by his substance abuse. Therefore, elimination of his alcohol and drug abuse would not carry the promise of complete removal of the risk of re-offending. In conclusion, Dr Walton stated:
“All things considered, it is difficult to escape the conclusion that despite his relative youth. Mr Smith is a person properly described as being of flawed character. He has an established and worrisome accumulating criminal history, including recurring violence placing members of the public at significant risk and, overall, I would assess his risk of re-offending as being reasonably high, with the usual qualification that predictions about behaviour in the future are fraught with inaccuracy.”[111]
[111] Report at 6

In giving oral evidence, Dr Walton said that Mr Smith’s psychological age is much younger than his chronological age. An extended rehabilitation programme might not amount to a cure but, if his drinking can be brought under control, it is highly likely that it will make a very significant contribution to lowering the risk of his re-offending. Mr Smith does not need to be positively motivated when he goes on the programme when he starts it but it does help if he is. People forced to do it do benefit. Mr Smith needs the containment of a residential programme with a gradual reintroduction into the community. A three month residential programme with a nine month follow up programme is what is required in Dr Walton’s opinion.

Dealing with drugs and alcohol, though, is well short of dealing with his anger, Dr Walton said in giving evidence. With regard to his tendency to “fire up”, he can be taught strategies to deal with that. They can also be addressed through maturation but also in their own right. Most grow out of this behaviour by their mid 30s and, if they have not, they are in deep trouble. Sometimes they grow up gradually and sometimes there is an incident that shocks them so much that they stop their former behaviour.

Dr Walton said that Mr Smith saw the cancellation of his visa as an additional punishment and so as unfair. He could understand that Mr Smith was resentful about being “yanked” from his family and was concerned that this could be a potential trigger for his reoffending.

FUTURE PLANS

Mr Smith

In his statement, Mr Smith said:
“I acknowledge that I had the opportunity of attending a detox program in Footscray in or around 2010/2011. I was around 16 or 17 at the time and, with hindsight, I was probably very immature. I did not make a full commitment to the interactive course, although physically I felt better. I do not want to blame anyone but myself for this, but it is difficult to appreciate what is offered when you do not have a clear direction or ability to fit into a normal education system. However I was also able to undertake some vocational training during the period at Kangan Institute. …^[[112]]
I believe I look at my situation in an entirely different way now. This is for several reasons. I am older. I have been in an adult prison environment which has been very difficult. It is very clear to me that if I do not try hard to remove myself from a life constantly affected by alcohol, then I will likely spend a large part of my life in a prison environment. This has been a terrible realisation. I have been placed in 22-23 hour lockdown for many months and have had considerable time for reflection. This has also meant I have thought a lot about what I have done to my family and importantly, on what I have done [sic] the victims.”
[112] I have referred to the courses for which Mr Smith obtained certificates at [138], [142] and [146] above.

In giving oral evidence, Mr Smith said that he knew his victims and their families had been affected by what he had done. He knows how his family would feel if what he had done had been done to him for no reason. He would not be very happy and he feels “genuinely remorseful” for his victims. When asked what he could do about that, Mr Smith asked what could he do. He cannot apologise to them because he has no contact with them. The recent incidents that have occurred in prison have not hurt anyone. He or his family has paid for the property he broke. Mr Smith rejected any suggestion that the community pays for any part of it because he paid $300 or $400 for it.

Mr Smith explained further the thoughts he has in lockdown. He thinks particularly about all of the things he has done wrongly. He thinks of the things that he can change, his Mum and Dad and what he can do instead of just being stupid. Mr Smith said that he thinks of getting a job, which he has never had except when he worked with his Uncle. He wants to talk properly with his brothers and his niece and nephew and be a positive role model for his brothers. He wants to show that he really does appreciate his family and to deal with his problems properly instead of having his family suffer for what he does. If he could break the cycle, that would happen. If he could swap work for drink, he could achieve something more positive. If he had a job, he would have money and that would break the cycle because he would not have to take it or bludge it from others.

In his statement, Mr Smith wrote about his risk to the Australian community:
“ In relation to whether I am a risk to the Australian community, I believe there is a simple answer. I must stay away from alcohol. I have never been committed or been involved in an offence without being under the influence of alcohol. In order to keep control, I need to have another pathway. My father has indicated there is a position for me at his work as a trainee spray painter. I believe I have the basic skills to take this on, but obviously it will be a steep learning curve. I am fully committed to this.
… I believe I am a different person, much more reflective and determined to grow up. None of the people I associated with when offending have tried to contact me or visit me, and I no longer consider them friends. There is no reason for me to contact them again and a great stimulus for me to stay out of prison after experiencing the harshness of solitary confinement at such a young age. I recognise I need help in relation to alcohol an clearly I cannot tolerate it. I intend to do everything in my power to avoid putting myself in these situations again. I want to have a normal life.”

Mr Smith was asked at the hearing as to how he would achieve his goal of staying away from alcohol. He replied that his parents had organised for him to go to a residential three month rehabilitation programme at Bendigo immediately upon his release. There would be no gap between release and entry into the programme. His parents would pay for the course and he will deal with his issues directly. He is grown up now, he said, and can take up a hobby such as going to the gym so that he can swap a good habit for a bad habit. When asked why this time would be different from previous programmes, he replied that he would be getting proper treatment, he would be working and the choice is now between not drinking and being with his family and drinking and being in New Zealand with no-one. He has never lived by himself and could not cope. The situation would be a lot different, he said.

He will be able to hold down the job because he would be with his father and would know someone. There would be money in his pocket and that would keep him out of trouble. He would keep busy and change bad habits for good. If he has his own money, he will be able to buy his own phones and such like. He will be able to play sport to keep fit, find hobbies and get new friends. He would like to do a course but did not know what was available. If he is not drinking, there is no need to get angry. The incidents that have taken place in prison have occurred not because he was drinking, which he was not, but because he had no-one to talk to and no-one to calm him down.

If he were working with his father, he would not need to attack anyone. Instead, he would use his mouth. He does not always become angry and can control his temper when he is sober. Things happen every week and he does not argue and does not always get violent. The sorts of things that tip him over into anger occur when people say smart things, call him or those he is with names or treat them with disrespect.

If he had to return to New Zealand, Mr Smith said that he would not be able to support himself. He has no idea what he would do there. As for work, he would not work because there is no need for him to work as there is nothing to do. He does not know how to get a job and has never been to a Job Centre for help. Mr Smith saw no particular benefits in living in New Zealand. He saw no benefit in moving away from the friends with whom he has associated in the past. They all have “kids and stuff” now and have moved on. He does not talk to them. The idea of a new chance to start again did not appeal as he has never done anything by himself. His family has always helped him.

Mr Smith senior

When his son got on a panel beating course at Laverton, he took pride in himself, Mr Smith said. Then his son “ballsed up” and he was “all over him”, he said. He has been talking with his son and telling him that when he takes a phone he takes not only a phone but a bit of their soul. The first day of the hearing was the first time that he had ever heard his son admit that he had done wrong things. Now he has done that, Mr Smith said, they can work together. They cannot work together if they cannot communicate.

His son is a machine if he is working, Mr Smith said. He was confident that he would not use money he earned from working to buy alcohol. His son gets drunk out of anger and frustration. It is not possible both to work and to have bad habits. His son will stick at the work he has organised for him with his employer. It will be sandblasting work which is very physical and exhausting work. He will stay with that work because his boss is a very patient man and is keen to help Mr Smith whom he regards as a very valuable employee. His son would be able to move from sandblasting to spray painting. Those he would be working with “won’t take no crap” but also have patience and would “let him spin out and then talk to him”. That is part of growing up. It is “OK to get angry”. That is how Mr Smith had managed to get through his early period in the workforce.

There is no-one in New Zealand for his son if he is required to return there, Mr Smith said. If that happens, the whole family other than their eldest son would have to return to New Zealand. That would mean separation from his two grandchildren. That is not what Mr Smith wants to do but it is what they would have to do. There is less money for them in New Zealand but they still have to be there for their son and to be strong for him if he has to return there. Mrs Smith also said that the family would have to return to New Zealand if her son’s visa were cancelled. That would be so even though it would not be the best decision for them as a family. If they do not return, her son would not know anyone in that country.

Mrs Smith has arranged for her son to be accepted in a drug and alcohol farm-based programme called “Bendigo Bridge” run by the Salvation Army at Bendigo. It is a three month residential course. She has seen that her son’s anger goes hand in hand with his drinking, she said. He becomes worried about things that others are doing and that are not his business. His education has been lacking and he has to want to improve himself.

I certify that the one hundred and eighty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ....(sgd)......................................................

Leah Berardi Associate

Dates of Hearing  18 and 19 September 2013
Date of Decision  26 September 2013
Self-represented applicant                 Mr W Smith
Solicitor for the respondent               Mr D Brown
Australian Government Solicitor

“ The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … The meaning of the provision must be determined ‘by reference to the language of the instrument as a whole’ … In Commissioner for Railways (NSW) v Agalianos …, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed …” (citations omitted)

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Smith and Minister for Immigration and Border Protection [2013] AATA 687

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