"SRIIII" and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1208
•17 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1208
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1129
GENERAL ADMINISTRATIVE DIVISION ) Re
“SRIIII”
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date17 November 2004
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that I exercise the discretionary power in s 501(2) of the Migration Act 1958 in favour of not cancelling the applicant’s visa.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa application – cancellation of subclass 806 permanent visa – applicant fails the character test on the ground of his substantial criminal record – examination of the applicant’s criminal record – examination of the applicant’s family situation including marriage to spouse living in Fiji – examination of the applicant’s psychological state – discretion that the tribunal may exercise where the applicant fails the character test – found that the applicant fails the character test because of his substantial criminal record – found from the medical evidence that the applicant is suffering PTSD and depression as a result of sexual abuse which lead to his self-defeating behaviour – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant and his family – held that the risk of recidivism by the applicant is low and that the Australian community would allow him the opportunity to undertake treatment in Australia to aid in his rehabilitation and to continue with the family business that he has established – the tribunal therefore exercises its discretionary power in s 501(2) in favour of not cancelling the applicant’s visa.
Migration Act 1958 ss 499(1), 501(1), 501(2), 501(2)(a) and (b), 501(6)(a), 501(7)
Australian Citizenship Act1948 s 13(1)(f)
Administrative Appeals Tribunal Act 1975 s 35(2)
Human Rights (Sexual Conduct) Act 1994 (Cth)
Dudgeon v United Kingdom (1981) 4 EHRR 149
Lawrence v Texas (2003) 539 US 558
Rokobatini v Minister for Immigration and Multicultural and Indigenous Affairs (1999) 90 FCR 583
“United Nations: Human Rights Committee: the Toonen Case” (1995) 69 ALJ 600
REASONS FOR DECISION
17 November 2004 Professor GD Walker, Deputy President Summary
1. Because of the nature of certain admitted facts in this case, and the effect their disclosure might have on the applicant’s prospects for successful treatment of his psychiatric condition, an order was made under s 35(2) of the Administrative Appeals Tribunal Act 1975 restricting publication of the names of the applicant, his wife and his parents.
2. The applicant, who is aged 25 and a citizen of Fiji, first entered Australia on 22 August 1984 on a visitor visa valid until 18 October 1984. Between 17 February 1985 and 1 September 1996 he entered and departed Australia as the holder of three visitor visas. On 11 June 1997, A was granted a permanent (subclass 806) visa.
3. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that A did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his past and present criminal conduct and because he has a substantial criminal record in Australia, including driving in a dangerous manner and negligent driving. The respondent therefore cancelled A’s permanent (subclass 806) visa. This is the decision to be reviewed by the Tribunal.
Background
4. A was born in Fiji on 5 December 1978 and is aged 25. He is a citizen of Fiji. A first arrived in Australia on 22 August 1984 on a visitor visa valid until 18 October 1984. On 17 February 1985, he departed Australia, returning on 8 December 1990, on a visitor valid until 8 January 1991. On 13 January 1991, he departed Australia, returning again on 3 December 1991, on a further visitor visa (G3 p19). On 18 December 1991, A departed Australia, not returning again until 1 September 1996, on a further visitor visa (G3 p20). On 11 June 1997, A was granted a permanent (subclass 806) visa. Since the grant of that visa, A has departed and returned to Australia on four occasions, departing 6 December 1997, returning 10 February 1998, departing 15 December 1999, returning 9 January 2000, departing 17 October 2002, returning 31 October 2002 and departing 20 March 2003 and returning 30 March 2003 (G3 pp20-24). On 21 March 2003, during this last visit to Fiji, A married Shelvina Sumeeta, born 23 March 1984 and aged 20, in a marriage arranged by his family. A has subsequently lodged a spouse visa application for his wife to be allowed to come to Australia.
5. Between 1998 and 2003, A was convicted of a series of criminal and driving-related offences for which he was imprisoned until 14 September 2004 when he was detained at the Villawood Immigration Detention Centre, New South Wales (G5). A is disqualified from driving until August 2034.
6. Amongst his convictions, he has the following:
Court date
Court
Offence
Sentence
26/11/1998
Campbelltown Local Court
1. Wilfully furnish misleading information
2. Licence cancelled, drive vehicle while licence cancelled
3. Negligent driving (not death or GBH)
1. Fined $300, court costs $52
2. Fined $500, court costs $52, disqualification from driving six months
3. Fined $200, court costs $52
29/4/1999
Fairfield Local Court
1. Drive in a manner dangerous to the public
2. Drive while disqualified from holding a licence (two counts)
3. Not wear seatbelt
1. Convicted, s 80AA warrant to issue
2. Convicted, s 80AA warrant to issue (both counts)
3. Convicted, s 80AA warrant to issue
2/6/1999
Liverpool Local Court
1. Be carried in a conveyance taken without the consent of the owner
2. Goods in personal custody reasonably suspected of being stolen
1. Convicted, s 80AA warrant to issue
2. Fined $250, court costs $52
22/6/1999
Campbelltown Local Court
1. Negligent driving (first instance warrant)
2. Not wear seatbelt (first instance warrant)
3. Drive in a manner dangerous (first instance warrant)
4. Drive while disqualified (first instance warrant)
1. – 4. Convicted, s 80AA warrant to issue
28/6/1999
Campbelltown Local Court
Licence cancelled, drive vehicle while licence cancelled
Fined $1,000, court costs $52, disqualified from driving for 12 months
6/8/1999
Campbelltown Local Court
1. Drive manner dangerous (first instance warrant)
2. Drive while disqualified (first instance warrant)
3. Carried in conveyance (first instance warrant)
4. Not wear seatbelt (first instance warrant)
5. Drive while disqualified from holding licence
1. 12 months periodic detention, disqualified from driving 5 years concluding 5/8/2004
2. 12 months periodic detention
3. 12 months periodic detention
4. Fined $100, court costs $52
5. Recognisance s558, $1,000, three years disqualification concluding 5/8/2004
[Note: On 1 December 1999, the New South Wales Parole Board, A having failed to comply with the conditions of periodic detention, order A’s periodic detention order be cancelled and in lieu sentenced A to 57 weeks fixed detention.]
6/8/1999
Liverpool Local Court
Drive while disqualified from holding a licence – 2nd offence
Recognisance s558, $1,000 three year supervision New South Wales Probation Service, disqualified for five years concluding 5/8/2004, to attend Traffic Offenders Program
10/11/1999
Liverpool Local Court
Drive while disqualified (first instance warrant)
Convicted s 80AA warrant to issue
29/1/2000
Merrylands Local Court
Cancellation of periodic detention (first instance warrant)
No appearance by defendant – return to custody
12/7/2000
Parramatta Local Court
1. Steal motor car/motor vehicle
2. Drive while disqualified (first instance warrant)
1. 15 months imprisonment commencing 29/1/2000 (on appeal against severity, conviction confirmed by the Parramatta District Court on 13/12/200, in lieu 12 months imprisonment)
2. Six months imprisonment, automatic/statutory period three years (on appeal against severity, conviction confirmed by the Parramatta District Court on 13/12/2000)
20/7/2001
Liverpool Local Court
1. Drive while disqualified
2. Possess implement to enter/drive conveyance
3. Take and drive conveyance without consent of owner
1. Two years imprisonment commencing 20/7/2001, non-parole period with conditions 18 months, release subject to supervision, disqualified from driving two years commencing on 5/8/2007
(on appeal against severity, conviction confirmed by the Campbelltown District Court on 10/10/2001, in lieu 12 months imprisonment commencing 20/7/2001, non-parole period six months commencing 20/7/2001 concluding 19/1/2002,disqualified from driving for two years commencing 5/8/2007 and concluding 4/8/2009
2. 12 months imprisonment commencing 30/7/2001
(on appeal against severity, conviction confirmed by the Campbelltown District Court on 10/10/2001, in lieu 12 months imprisonment commencing 20/7/2001, non-parole period six months commencing 20/7/2001 concluding 19/1/2002
3. 12 months imprisonment commencing 30/7/2001
(on appeal against severity, conviction confirmed by the Campbelltown District Court on 10/10/2001, in lieu 12 months imprisonment commencing 20/7/2001, non-parole period six months commencing 20/7/2001 concluding 19/1/2002, disqualified from driving two years commencing 5/8/2007 and concluding 4/8/2009
16/10/2002
Liverpool Local Court
Drive while disqualified
20 months periodic detention commencing 1/11/2002, non-parole period with conditions 15 months, release subject to supervision, disqualified from driving four years commencing 5/8/2007
16/10/2002
Liverpool Local Court
1. Goods in personal custody suspected of being stolen (not m/v)
2. Drive while disqualified
3. Drive while disqualified
4. Drive while disqualified
1. Nine weeks imprisonment commencing 8/8/2002
2. Periodic detention 20 months commencing 1/11/2002, non-parole period with conditions 15 months, release subject to supervision, disqualified from driving four years commencing 5/8/2007
3. Declared habitual offender. Disqualified for five years from 5/8/2024 for the offences of 6/6/2002, 18/5/2001 and 19/3/1999
4. Declared habitual offender. Disqualified for five years from 5/8/2029 for the offences of 7/8/2002, 6/6/2002, 10/5/2001
(Disqualification ends 5/8/2034)
(Note: On 11 December 2003, the New South Wales Parole Board, A having failed to comply with the conditions of periodic detention, revoked the periodic detention order and imposed a full-time custodial sentence of one year two months and one day.] [G p7]
7. A has also had the following offences recorded against him while imprisoned:
7/1/2004 Fail to comply with correctional centre routine
5/12/2001 Damage, destroy property
20/10/2000 Damage cell/contents
19/7/2000 Damage property
21/4/2000 Cleanliness of cell
24/3/2000 Damage property
8. On 5 November 2001, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”), New South Wales Character Section, informed A that the Minister or his delegate was considering cancelling his permanent visa because of his substantial criminal record and his past and present criminal conduct and inviting him to comment (G4 p56). On 8 January 2002, after submissions were made by A and his family, a decision was made not to cancel his permanent visa (G4 p31). However, the Minister decided to issue a warning to A that a conviction for any further offence would result in a fresh assessment being made to cancel his visa (G p31). A was notified of this warning by telephone on 8 January 2002. He formally acknowledged receipt of the warning on 6 April 2002, received by DIMA on 23 April 2002 (G p29).
9. On 25 September 2002, A applied for Australian citizenship which was refused on 5 February 2003 pursuant to s 13(1)(f) of the Australian Citizenship Act 1948.
10. On 6 February 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, advised A that he was considering cancelling his resident return visa because of his substantial criminal record and past and present criminal conduct and inviting him to comment (G6 p89). The officer also informed A that DIMIA would be taking into account, in making the decision, his New South Wales criminal history, his Sentence Administration Report and that he had previously been considered for cancellation of his visa, a warning for which he had acknowledged and returned to DIMA on 23 April 2002 (G6 p89).
11. On 2 March 2004, an officer of DIMIA spoke to A, with the assistance of a welfare officer, at the Cessnock Correctional Centre. A informed the officer that he would be making submissions on his own behalf. No such response was received. However, by facsimile dated 2 March 2004, A’s parents, Hamendra and Lalita, wrote to DIMIA stating that their son was a good person but got into the wrong company of friends. Hamendra stated that his son had been working for him and that the family did not want him to be returned to Fiji because they were supporting him to do well. They also stated that they had made arrangements for A to be married and needed to be given a chance to make a fresh start (G8 p94).
12. On 4 May 2004, an officer of DIMIA’s Character Section informed A that as she had not received any submissions from him as to the intention to cancel his visa, except for the letter written by his parents, she would allow him until 28 May 2004 to make submissions on his behalf (G9 p95). By facsimile dated 26 May 2004, A wrote to DIMIA, advising that he had worked as a welder and had been assisting his family financially. A said his offending behaviour was as a result of being the “only sober person” at a party and therefore he decided to drive (G10 p97). On 27 May 2004, A made oral submissions to an officer of DIMIA, through a welfare officer at Cessnock Correctional Centre, during which conversation he admitted that he had made the decision to drive knowing that he was disqualified. He stated that he had been married in Fiji and wanted to give his wife the best possible life. He said that he could not return to Fiji because his parents were approaching retirement and he was the only one who could support them and he could not do this from Fiji (G11 p98). A also informed the DIMIA officer that he would be sending further written submissions to the department, but no such submissions were received (G p98).
13. On 1 September 2004, a delegate of the respondent decided to cancel A’s permanent visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1). On 6 September 2004, A lodged an application for a review of this decision by the Tribunal.
14. At the hearing of this matter, the applicant was represented by Christopher Levingston, solicitor, of Christopher Levingston and Associates, solicitors, and the respondent was represented by Adele Alex, solicitor, of Phillips Fox, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the applicant at the hearing. Oral evidence was given in person by A, his parents and his brother. Dr Christopher Lennings gave oral evidence by telephone.
Relevant Law and Policy
15. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
16. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
17. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
18. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
19. In the present case, A does not pass the character test because of his “substantial criminal record”, having received on 1 December 1999, a fixed term of imprisonment of 57 weeks (ordered by the New South Wales Parole Board in place of periodic detention) for drive manner dangerous and drive whilst disqualified; on 12 July 2000, a sentence of 15 months imprisonment for steal motor vehicle, (this sentence was reduced on appeal to 12 months imprisonment); and on 20 July 2001, a sentence of imprisonment of two years for drive whilst disqualified and 12 months imprisonment for possess implements to enter/drive a vehicle (the first sentence being reduced on appeal to 12 months); and on 11 December 2003, a fixed term of imprisonment of 14 months (ordered by the New South Wales Parole Board in lieu of periodic detention) for drive whilst disqualified. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel A’s visa.
Evidence
20. As A admitted the offences contained in the criminal history (G5), the evidence related only to the exercise of the discretion under s 501(2). In 1994 A was completing Year 12 at Xavier College in Fiji. At about that time a man, who will be referred to as Z, came to stay at A’s parents’ house for about a week, spread over two visits. Z was an unmarried man aged about 50 who knew A’s paternal uncle who lived in Ohio, USA. In the course of that visit, Z initiated several episodes of sexual contact with A, who at that time was aged 16 and had no sexual experience. The activities, which occurred in A’s parents’ house while they were asleep, included Z’s performing fellatio on A. After the first encounter, A did not tell his parents what had happened and tried to avoid Z. He was deeply embarrassed and did not know what to do. Z told him not to say anything about it to anyone and promised to look after A and secure his future. Until shortly before the hearing of this matter A had not told anyone about these events other than his cousin, who was assaulted in the course of the same visit by Z, and another boy who was being similarly treated by Z in the United States.
21. At the end of the week Z offered A the opportunity of going to the United States to study. A refused the offer, suspecting what might be involved, but his parents, who knew nothing of the sexual contacts, were in favour. Eventually A relented and said he was prepared to go. His father made contact with his brother, who in turn contacted Z, and in about January 1995 A travelled to the United States.
22. It is not necessary to detail the regular sexual encounters, involving fellatio, anal intercourse and other practices, which Z arranged with A over the following 18 months. It is enough to say that they occurred mainly in the course of “business trips” to Florida, Michigan and California and also at Z’s large and well-appointed house in Ohio. It emerged that Z made a practice of travelling the world and offering “scholarships” to selected boys to enable them to travel to the United States to study. He would advance them their college fees and, while they were staying at his Ohio residence, would give them the use of any car they selected from the dealership that he owned.
23. A felt completely trapped in this situation and unable to deal with it in any way. He felt he could not tell his parents because of the shame he thought it would bring to him and to them. He had no money of his own or any contacts in whom he felt he could confide. His uncle was actually living in the Ohio house with his wife and children, but A felt he could not discuss his problem with him either. A had another uncle who lived in San Diego. Becoming suspicious about the arrangement with Z, this uncle asked A about it. Again, A felt unable to confide in him and simply explained it away as a pattern of generous activity on Z’s part.
24. A says that since the first encounter with Z in Fiji, he has not had a moment’s peace. He has continually thought about what happened and what he could have done. Even now he spends everyday regretting what happened – it is the first thing on his mind in the morning and the last thing on his mind in the evening.
25. A’s family is a close one and he has always wanted to be with them. But he felt he could not impart to them what he regarded as his terrible secret, even though they knew he had some secret and that knowledge had undermined their relationship. He says he knows his parents love him but they don’t know who he is. He also bitterly regrets the resulting deterioration of his close bond with his brother. He knew his family were trying to help him but he felt dirty. Finally he did not care what happened to him.
26. While he was on a visit to Florida with Z he met a young Fijian Indian who warned him to get away from Z or “he will destroy your life”. A asked him what he could do, and the other replied “find a college as far away as you can”.
27. A subsequently enrolled at the San Jose campus of the State University of California and there studied aerospace engineering for two years. He passed his examinations and was later able to credit the subjects completed when he enrolled for aeronautical engineering at the University of Sydney after coming to Australia.
28. In about mid-1996 A formed a relationship with a girl named Vanuta. His association with her gave him the confidence he needed to extricate himself from Z’s web. Late in 1996 Z was visiting California and tried to arrange one of his usual assignations with A. An initial meeting was set up at a Denny’s restaurant. A seized that opportunity to warn Z that if he ever came near him again, he would tell others what had happened. After that he did not see Z again, although Z did try to contact him by telephone.
29. Even by the time he moved to San Jose, A had developed a profound loathing of Z and harboured thoughts of killing him. He said that he did not report Z to the police because Z had entertained senators at his house and A felt Z was too well connected politically for him to be able to make any substantial charges against him. In any case he believed that if he had attempted to do so, Z would have had him murdered.
30. When he came to Australia, he enrolled for an aeronautical engineering course at the University of Sydney and endeavoured to settle down and lead a normal life. He could not concentrate on his studies, however, because of constant nagging thoughts about his life with Z. He withdrew from university and sank into what the psychologist, Dr Lennings, described as a situation of quite severe depression and anxiety. He became involved in a number of short-term relationships with women, one of which led to his being deliberately run over with a car twice on one occasion by a rival for the affections of a particular young woman. This resulted in a head wound and a quite severe spinal injury, which has caused him constant pain ever since. The driver of the car was later convicted of assault causing grievous bodily harm. After this event, which appears to have been in fact the attempted murder of A, he felt so negative about himself that he attempted suicide.
31. During this period he began to spend time with some friends he had met at university who had abandoned their studies and were content to avoid work, collect the dole and waste their lives. This facilitated A’s drift into offending behaviour and multiple convictions. These offences, which took place over approximately a two year period, involved for the most part motor vehicle offences, such as driving while disqualified, except for a conviction for goods in custody relating to a packet of razor blades. As the offences multiplied, the penalties became heavier and A soon earned custodial sentences.
32. On 8 January 2002 the department warned A that if he committed any further offences, the possibility of cancelling his visa would be further assessed. That warning seems to have been taken to heart, as it does not appear that A committed any further offences thereafter. His subsequent convictions were for offences committed before that warning. His conviction on 16 October 2002 for driving while disqualified resulted in a sentence of 20 months periodic detention with a 15 month non parole period (with conditions on supervision), and a further disqualification from driving. While serving the periodic detention, he developed appendicitis and had to enter hospital to have the appendix removed. This contributed to his missing three weekends of detention, and when he was late in lodging medical evidence to explain his default, the parole board revoked the periodic detention order and imposed instead a full-time sentence of one year three months and 26 days imprisonment, with a 10 month and 28 day non parole period.
33. In the meantime, in the course of a short visit to Fiji, he married his wife Shelvina. Though the marriage was an arranged one and he has not lived with his wife for any length of time, he has deep feelings for her and takes his commitment very seriously, calling it “the ultimate responsibility”. He has committed no offences since his marriage. A agrees that his record is a serious one and understands the respondent’s concerns. He contends that he can now maintain his promise not to offend in the future, partly because he is now married, partly because he will now be able to talk about his experiences and problems with his parents and explain what went wrong and why he disregarded their advice during those painful years. He would undergo treatment with the clinical psychologist, Dr Lennings, and although he understood that it could be a long process involving 16 to 32 sessions, he believed that it could make a difference and that the dreams and flashbacks of his time with Z would eventually go away. He would be able to afford to pay a driver to transport him around because while he was on periodic detention he had founded with his father a trucking and engineering supply company that had proved successful. At present his father was running the company as an interim measure, but would restore control to A if he were able to stay in Australia. His father in his own evidence attested that his son was really the moving force behind the business because of his higher level of education. Finally, a most important reason why A thinks he can now put the past behind him is that he has met someone who trusts him – his lawyer, Mr Levingston, who he describes as the first person who understood his problem. It was he who elicited the facts about Z’s behaviour and arranged for A to meet the clinical psychologist.
34. At the time the decision under review was made, the department knew nothing of Z’s sexual exploitation of A or of its consequences on his mental health and wellbeing. Indeed, even his parents were unaware of these matters until the morning of the hearing. They might not have come to light at all but for a web search conducted by Mr Levingston that revealed that Z, while a quite well-known identity in his part of Ohio, was also a convicted felon and an alleged paedophile. Starting with that knowledge, he was able to elicit from A the information contained in his statement (Exhibit A4). He arranged for a consultation with Dr Lennings, whose detailed report is Exhibit A6.
35. Dr Lennings is an experienced clinical psychologist with special expertise in the area of sex abuse. A did not at first volunteer any information about those matters to him, though Dr Lennings opined that he might have done so later. In the event, however, Dr Lennings told A that he knew about the abuse and the “scholarship”. A was surprised that he had that information and was initially angry at his lawyer for having told him. Dr Lennings gave him a chance to describe his experiences, but A soon became very agitated and Dr Lennings did not think it would be in A’s interests if he were to probe that area too deeply and in detail. Dr Lennings conducted what he called a double interview designed to catch inconsistencies in the subject’s story and also administered a detailed MCMI personality inventory test, which provides general information about the personality and clinical syndromes from which a person might suffer.
36. In essence, Dr Lennings found that while A had apparently been a happy and well-adjusted youth until he was 16, his experiences with Z had left him with a profound and severe case of post traumatic stress disorder (PTSD) coupled with depression. His behaviour had been motivated by his underlying psychological condition. His pathology was marked by a great deal of repressed anger which he channelled into self-defeating behaviour. He chose the traffic laws as the area in which to channel his anger and resentment because they provided an outlet that he saw as relatively less harmful to others. He still finds it excruciating to talk about his time with Z because he re-experiences the abuse each time he is asked about it, expressing anger and bitter resentment (as indeed he did under cross-examination at the hearing). The damage he had suffered at Z’s hands was similar, Dr Lennings said, to that likely to be sustained by any other youth of his age whose developing image of himself as a man had been compromised in that way. At the same time, A had been ambitious and keen to make the most of his educational opportunities in the United States, so his defences to Z’s advances may have been somewhat lower than they would otherwise have been.
37. Dr Lennings thought A would be open to therapeutic help provided his pessimistic outlook could be overcome. Treatment was likely to be successful as he possesses psychological resources and a capacity for self-control. As he has no history of substance abuse or alcohol dependency, the prognosis for him was better than it would be in many whose treatment was made more complex by such factors. Part of the treatment for PTSD is the teaching of arousal reduction mechanisms, which would need to occupy the first three or four sessions of a treatment program. There can be no guarantees of success, Dr Lennings continued, but A does appear to understand that he now must make a choice. At his age his mental habits are still forming and if the depression and PTSD are not treated, they could become more severe and entrenched. In the short term, the point of highest risk would be in any translocation back to Fiji. While A did not overtly threaten suicide at his consultation (or in the witness box), Dr Lennings deduced that he has no intention of surviving a move back to Fiji. “He’s dealing with the pressure internally by saying to himself that he will be dead soon”, he said.
38. In cross-examination it was not suggested that Dr Lennings lacked the expert qualifications needed for analysing a case of this type or that his report was in any way partisan or lacked independence.
39. A’s father gave evidence that he had tried to help A to resolve his driving issues while A was living with his parents, but he “didn’t come out to us with the problem. We only found out about it this morning”. This knowledge would greatly change the way in which he endeavoured to help his son. Thanks to the income generated by the business that A had been largely responsible for founding, he had the means to help A to obtain the psychological care that he needed. He and his wife would give all the moral and material support they could. They would do everything in their power to help him if he were to be removed to Fiji, but it was not clear whether there were in Fiji psychologists or psychiatrists with expertise in these particular problems. Further, in Fiji he would not have his family’s day-to-day support.
40. While A had been on periodic detention, before his last period of incarceration, he had worked long hours to establish the trucking and engineering supply business that is now the source of the family’s income. His knowledge and his helpful approach had made him the main driving force behind the business. The company is a success, earning about $30,000 monthly, of which between $5,000 and $6,000 is drawn by A’s father personally for expenditure on the family’s mortgage and other needs. The company is expanding and acquired two more trucks two weeks ago that are expected to generate further income. His vital contribution to the businesses success could not be replaced by his younger brother, who is a fulltime university student.
41. A’s mother and brother also gave evidence. Both strongly hope that A will be permitted to remain in Australia, as the family is a very close one. His mother said that the family had always done everything they could to support and help him, and to guide him away from his negative associates. Since his marriage he had been working full-time developing the family business. He had previously held jobs for varying periods but the back injury caused by the attempt on his life had made it difficult to remain in his previous employments. Now that she knew the source of his problems the family would be able to do more for him. His situation would be much more difficult in Fiji, where the family has no longer any property or other accommodation.
Application of the Law and Findings of Fact
42. As stated above, there is no dispute, and I find accordingly, that A does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, A has been convicted of a number of offences for which he was sentenced to a term of imprisonment greater than 12 months.
43. The issue for the tribunal then is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel A’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
44. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
45. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (l) serious theft which causes disruption to individuals and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
46. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
47. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. While the types of motor vehicle-related crimes committed by A are not specifically listed as serious in the direction, as Ms Alex rightly pointed out they can cause great public harm and are of concern for the welfare and safety of the Australian community, as well as causing disruption and cost. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a) the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; …
48. The pattern of sentences in this case shows that the courts were forced by A’s repeated pattern of offending steadily to increase the severity of the penalties imposed. It was argued on A’s behalf that “The relationship or otherwise between the offending behaviour and significant emotional distress exhibited by the Applicant may be relevant in the overall description of the applicant’s conduct as ‘being serious’”. That is not a proposition that cannot be accepted. Unfortunately, large numbers of people have endured severe trauma in their lives and it is undeniable that the inner stresses created by those experiences can increase the temptation to offend felt by those affected. But the fact is that the majority of such people do not become serial law-breakers. The element of choice always remains (except in cases where the mental sickness satisfies the legal tests for insanity), and all people can be and are expected to choose to obey the law. A’s admittedly serious psychiatric problems are, however, relevant to the likelihood of recidivism.
49. On the other hand, while A has made himself a burden to the criminal justice system and a thorough social nuisance, it is permissible in relation to the question of seriousness to take account of the fact that although A’s rampage through the motor vehicle laws of New South Wales could have caused great harm to others, providentially, in the event, it caused no direct harm to any individual except himself.
50. Next, the tribunal must consider the risk of recidivism. The applicant is a repeat offender who appeared regularly before the courts between 1998 and 2002. He was declared a habitual offender by the Parramatta District Court on 13 December 2000. Paragraph 2.10(b) of the direction states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.
51. It was argued on A’s behalf that his criminal history showed no escalation in the gravity of the offences (as opposed to the severity of the sentences imposed) and that all the offences took place during a period of a little over two years between 26 November 1998 and 13 December 2000. The later convictions related to earlier offences which had been working their way through the prosecution and trial process. As the criminal history with which the tribunal is supplied is necessarily a summary, and shows dates of conviction without the date of the offence, it is possible that there were no further offences committed after 13 December 2000 and there is no evidence before the tribunal to the contrary. What is clear, however, is that no new offence has been committed since A acknowledged receipt of the Minister’s warning about cancellation of his visa on or about 23 April 2002 (G p29). It was also pointed out that the department’s recommendation to the Minister dated 20 December 2001 describes A as being “at a low to moderate risk of recidivism” (G p38).
52. On behalf of the Minister, Ms Alex contended that no weight should be placed on the abuse suffered by A. While not disputing the truth of the allegations, she contended that many others have been abused, often at much younger ages, and that many of them had no-one with whom they could talk about their experiences. Yet most such people do not become offenders.
53. Indeed, it might be argued that Z’s treatment of A cannot be described as consisting of assaults or even of abuse. There is no evidence before the tribunal about the legal age of consent to homosexual activity in Fiji or in the American states in which the conduct took place. As A was aged 16 at the time of the first episode, however, it is clear that if the conduct took place in New South Wales, Victoria, Western Australia, Queensland (subject to certain qualifications) or the Australian Capital Territory, it would be classified as lawful behaviour between consenting adults in private. In higher policy-making and juristic circles, Z’s conduct might even be seen as the exercise of an inalienable human right (“United Nations: Human Rights Committee: the Toonen Case” (1995) 69 ALJ 600; Human Rights (Sexual Conduct) Act 1994 (Cth); Dudgeon v United Kingdom (1981) 4 EHRR 149; Lawrence v Texas (2003) 539 US 558). Nevertheless, in this case, the trauma caused by Z’s conduct is clear and proven, as is its effect in motivating A’s anti-social behaviour. Successful treatment of that trauma’s consequences is therefore a significant factor in the prospects of rehabilitation and the prevention of recidivism.
54. At the hearing, A said that if permitted to remain in Australia his two goals would be to bring his wife here from Fiji and to develop the family business that he has started. As to the first, the evidence shows that A has deep feelings for his wife and a highly responsible attitude to his marriage.
55. His launching and development of the family business is particularly significant. Shortly after his marriage, he borrowed some money from his father and bought two trucks. As Dr Lennings noticed in the course of his consultation, A has a keen interest in, and understanding of, transport logistics and brought them to bear in the creation of a trucking business which is also involved with the manufacture of engineering supplies for a large company with extensive worldwide operations. He worked between 13 and 14 hours a day, especially in training drivers, because he was not permitted to drive himself. His father and brother also drove him to the city or to the factory at Minto. The long hours he was putting into the business were part of the reason why he missed one or more of his periodic detention commitments.
56. Within a short time, he had achieved more commercial success than many of those who come to Australia on business visas. He accomplished this despite having no prior experience or existing contacts, being on periodic detention and suffering from a severe, profound and untreated case of PTSD. The business is still thriving and two new trucks were acquired two weeks before the hearing. A obviously enjoys making money and is uncommonly good at it. As Dr Samuel Johnson once said, “A man is seldom so innocently employed as in making money”. If allowed to remain in Australia, A says that he would be able to hire a driver to transport him for the purposes of his work. His wife would also be able to act as driver on other occasions.
57. Finally, the perspective on rehabilitation in this case has been transformed by the discovery of the underlying mental disorder which, Dr Lennings said, had motivated A’s anti-social behaviour. He described the prospects for successful treatment as very good, partly because A has no problems with substance abuse and partly because he has inherently good powers of control and underlying psychological strength. If his condition is left untreated, he is likely to descend into profound and habitual patterns of depression and self-destructive behaviour, but as against that, at 25 he is young enough to respond successfully to therapy. He has already taken a major step by opening up to Dr Lennings about his traumatic experiences, something he had not previously done with anyone in authority. His family is able to pay for the treatment that he needs.
58. This is a very different picture from the one that is normally presented in this type of case. Many applicants in visa cancellation cases claim to be reformed characters and have acquired useful qualifications, such as forklift driver or bricklayer, while in jail, but there is uncertainty about whether they would stay rehabilitated once they are at liberty. In this case, however, A has proved that he can focus on his stated goals – his marriage and his business – and has not re-offended since at least his marriage and the Minister’s warning.
59. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa “ (Direction No 21 para 2.11).
60. In this case, given the lack of significant harm caused to other individuals by the offending conduct, the fact that it occurred over a relatively short period and appears to have ceased, and the fact that if allowed to remain in Australia A will be under the continuing supervision of the migration system which will take action if he should offend again, I believe that the requirements of general deterrence are satisfied by the substantial sentences that were imposed and by the period of immigration detention that he has undergone.
Expectations of the Australian Community
61. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”. While the community might normally expect that someone with a record like A’s be removed from Australia, I believe that public opinion would favourably view the making of an exception in this case. The nature of the offences involved, their cessation after his marriage and the Minister’s warning, his proven success in rehabilitation and the evidently good prospects for successful treatment of his underlying psychological problems put a different complexion on this application. In the unusual circumstances of the case I believe the community would agree that a young and promising life such as A’s deserves one final chance.
The Best Interests of the Child
62. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2).
Other Considerations
63. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
64. The applicant’s parents and brother live in Australia. His wife Shelvina lives in Fiji and he has lodged a spouse visa application to enable her to come to Australia. She would suffer no hardship if A were returned to Fiji in the sense that she is already living there, but the situation could be different if the kind of expert therapy needed by the applicant is not available in Fiji. She would also be prospectively disadvantaged by the fact that A’s business ties with Australia via the trucking and engineering supply company that he has successfully established would be disrupted. His prospects of launching an equally successful venture in Fiji must be regarded as highly uncertain. His parents and brother in Australia would suffer emotional hardship by being separated from their elder son and only sibling respectively, but that could be mitigated by visiting Fiji, which they already do approximately once a year. The applicant has District Court proceedings pending in New South Wales against the driver of the motor vehicle that ran him down and injured him. He has also appointed a lawyer in Ohio to investigate the possibility of commencing proceedings in that state’s courts against Z seeking damages for the psychological injury he inflicted on A. Besides carrying the prospect of compensating A for his treatment and other expenses and helping him to rebuild his life, those proceedings, if successful, have the potential of curtailing the activities of Z and his “scholarship” scheme. Both those suits could be continued if A were living in Fiji, but inevitably with greater difficulty, cost and inconvenience.
65. The tribunal is also required by paragraph 2.17 to consider “any significant compassionate circumstances”. Compassion is not to be confused with sentimentality, which focuses on the person who happens to be in the spotlight at the expense of others who are not, but who face similar problems and hardships. That kind of focus tends to treat some people as more equal than others. Compassion does not see its recipients as victims but as agents of their own destiny who need at the start a little help to get on their way. In this case it means acknowledging that A has suffered severe trauma and injustice, but at the same time so, unfortunately, have many others, and most of them have not become repeat law-breakers. On the other hand, A’s offending behaviour appears to have covered a relatively short period of a little over two years, and now that the source of his negative motivation has been discovered, the prospects for successful treatment of his PTSD and depression are very good. Compassionate considerations weigh against cutting off that avenue for treatment and long-term rehabilitation when there is no evidence that a psychologist or psychiatrist with the required specialist expertise is available in Fiji. That uncertainty raises the prospect that cancellation of the applicant’s visa could have a disproportionately harsh effect on A.
66. The evidence of “rehabilitation and any recent good conduct” (para 2.17(h)) is strong here. The applicant has committed no new offences since at least the time of his marriage and of the Minister’s warning. Through his remarkable achievement of establishing and expanding the family business he has proved his ability and determination to be, and remain, a valuable and productive member of society. His firm commitment to his marriage portends well for a stable and harmonious future. Overall, his genuine and successful efforts at rehabilitation are really the most distinctive features of this case.
67. In this case I therefore find that the first primary consideration under Direction No 21, the protection of the Australian community, does not point strongly in favour of cancelling A’s visa because of the limited harm caused to the Australian community by his actions, and because of the strong evidence that he is unlikely to be a law-breaker in the future and has taken decisive steps towards rehabilitation. The good prospects for treatment of his PTSD and depression reinforce that conclusion. I therefore find that the first primary consideration is outweighed by the second, the expectations of the Australian community, and by the other considerations just referred to.
68. Consequently I believe that in this case the law should stay its hand and offer the applicant one more chance. He will remain under the supervision of the department and he knows what will happen if he deviates from the law in the future. The decision under review is therefore set aside and the matter is remitted to the respondent with a direction that I exercise the discretionary power in s 501(2) in favour of not cancelling the applicant’s visa.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 4 and 5 November 2004
Date of Decision 17 November 2004Solicitor for the Applicant Mr C Levingston, Christopher Levingston and Associates
Solicitor for the Respondent Ms A Alex, Phillips Fox
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