Stafford Aka Hoffman and Minister for Immigration and Citizenship
[2013] AATA 460
•4 July 2013
[2013] AATA 460
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1868
Re
Carl Justin Stafford aka Hoffman
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 4 July 2013 Place Melbourne Decision The Tribunal sets aside the decision under review and in substitution decides that the visa held by the applicant should not be cancelled.
(sgd) John Handley
Senior Member
MIGRATION – Review of decision to cancel applicant’s visa – failure to pass character test –- convicted and sentenced on many occasions –criminal history between age 14 and 37 years – offending commenced whilst at school – applicant arrived in Australia at the age of 3 and subsequently resided here – now aged 39 – applicant denied positive family environment –mother was a sex-worker and schizophrenic – home used as a brothel – father absent – applicant has diagnosed mental illness, an acquired brain injury and is drug and alcohol dependent – absence of intervention by welfare agencies – Direction 55 – other considerations carried more weight than primary considerations – decision set aside.
LEGISLATION
Migration Act 1958 ss 499, 501
CASES
Schuster-McFayden v Minister for Immigration and Citizenship and Another (2011) 124 ALD 68
REASONS FOR DECISION
Mr John Handley, Senior Member
4 July 2013
The applicant is a citizen of New Zealand who first entered Australia, under the surname of Stafford, in either 1977 or 1978 at the age of 3. He is presently 39 years of age. Movement records within the materials lodged by the Minister under s 501G of the Migration Act 1958 (the Act) (the G-documents) indicate that he returned to New Zealand for about 2 weeks between July and August 1988.
In September 1994, pursuant to the Migration Reform (Transitional Provisions) Regulations the applicant was deemed to be the holder of a Class TY Subclass 444 Special Category (Temporary) visa which permitted him to remain indefinitely in Australia whilst retaining his New Zealand citizenship.
On 12 April 2013 a delegate of the Minister decided that the applicant did not pass the character test within the meaning of s 501 of the Act. That decision was made because the applicant has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more (s 501(6) and (7) of the Act). As a consequence of that finding, the Minister's delegate decided to cancel the applicant’s visa. The applicant applies to review that decision.
DIRECTION N°. 55
The Minister may issue written directions to a person or a body (including the Administrative Appeals Tribunal) empowered to perform a function or exercise powers under the Act. The power to decide whether a visa should be cancelled is found within the discretionary provisions of s 501(2) of the Act. When exercising the discretion, the directions issued pursuant to s 499 must be followed. The most recent direction issued by the Minister is Direction No. 55 - Visa refusal and cancellation under section 501 (Direction 55) which commenced on 1 September 2012.
The Preamble to Direction 55 (commencing at paragraph 6) contains 3 sections entitled Objectives, General Guidance and Principles. The Objectives and the statement of General Guidance in Direction 55 are similar to a previous direction issued by the Minister pursuant to s 499 of the Act. The section entitled Principles, commencing at paragraph 6.3 is a significant addition to the direction, when compared to the previous direction.
The Principles may be summarised as follows:
(a)Australia has a sovereign right to determine whether non-citizens are of character concern (refer s 5C of the Act and Annex B of Direction 55) and whether they are allowed to remain in Australia, which should be regarded as a privilege. In return, there is in an expectation that they will abide by Australian laws, will respect important institutions and will not cause or threaten harm to individuals or the Australian community at large.
(b)A non-citizen who has committed a serious crime, including crimes of a violent or sexual nature and particularly against vulnerable persons such as minors, the elderly or the disabled should expect to forfeit the privilege of remaining in Australia.
(c)The harm as a consequence of criminal conduct or offending may be so serious, in some circumstances, that the risk of similar future conduct is unacceptable. Strong countervailing considerations may not be sufficient to prevent cancellation of a visa.
(d)There is a low tolerance of any criminal or other serious conduct (refer s 501(6)(c) and (d) of the Act and Annex B) by visa holders who have been present in Australia for a short period of time. A higher level of tolerance may be afforded to visa holders who have lived in Australia for most of their life or from a very young age.
(e)Non-citizens who have held a visa for a limited period and who have engaged in criminal or other serious conduct should not have an expectation that they will be allowed to remain permanently in Australia.
(f)The length of time that a non-citizen has made a positive contribution to the Australian community and the consequences of cancellation of a visa upon children and other immediate family members in Australia are relevant considerations.
Section 2 of Direction 55, commencing at paragraph 7, provides guidance in exercising the discretion and compels the Tribunal to take account of the Principles (above) in order to determine:
(a)whether a non-citizen will forfeit the privilege of continuing to hold a visa; and
(b)whether the risk of future harm by non-citizens is unacceptable. This will require consideration of the likelihood of any future harm, the extent of potential harm should it occur and the extent to which any risk of future harm, if at all, should be tolerated.
In exercising the discretion under s 501(2) of the Act, paragraph 8 of Direction 55 requires the Tribunal to take into account the primary and other considerations set out in paragraphs 9 and 10 respectively. Primary considerations should generally be given greater weight than the other considerations.
EVIDENCE
The Applicant
The applicant gave evidence in this review. Evidence was also heard from Ms Izabela Walters, a clinical neuropsychologist who assessed him on two occasions in September 2012, at the request of the solicitors who represented him in proceedings before the Sunshine Magistrates’ Court. Those proceedings were heard on 17 October 2012. That was the last occasion that the applicant was convicted.
The applicant said that his offending was in large part a consequence of drug and alcohol abuse over any years. His treating psychiatrist, Dr James Leahey and Ms Carla Lechner, a clinical and forensic psychologist (who also assessed the applicant at the request of his former solicitors prior to his appearance before the Sunshine Magistrates’ Court in 2012) did not give evidence. Reports prepared by them were received into evidence.
Mr Brown who appeared on behalf of the Minister indicated that he had requested the applicant’s representatives to have Dr Leahey and Ms Lechner available for cross‑examination. Ms Taylor, who appeared on behalf of the applicant, indicated that Ms Lechner was not available on the day of hearing and attempts to speak with Dr Leahey to secure his availability were unsuccessful. She also submitted that adjourning the application to secure the attendance of those witnesses was not a realistic option, having regard to the time constraints in respect of s 501 decisions. The applicant’s father, who is presently 66 years of age, suffers a serious life-threatening illness. He also was unavailable to give evidence.
Mr Brown submitted that the reports should not be received into evidence. Having heard the submission of Ms Taylor in opposition, I indicated that whilst it would have been preferable for the authors of the reports to have given evidence, I would allow the reports to be received as exhibits. Whilst the Tribunal is not bound by the rules of evidence, the contents of the reports may carry less weight than had the authors been present for examination.
The circumstances giving rise to this review were complex. The applicant is a person who has a significant number of prior convictions commencing as a child. He has been drug and alcohol dependent and has diagnosed psychiatric illnesses for which he has been prescribed medication and been treated as an inpatient in hospitals. I am grateful for the assistance provided by Ms Taylor and Mr Brown, for the summaries they provided in advance of the hearing and for their closing submissions.
The applicant was born in 1974 in New Zealand. The relationship between the applicant's parents deteriorated shortly after he was conceived. The applicant said that when his father learnt that his mother was pregnant, he provided her with monies to terminate the pregnancy. His father left New Zealand shortly thereafter and has subsequently lived in Melbourne where he practices as a solicitor.
The applicant’s father, Mr Hoffman, wrote to the Department of Immigration and Citizenship (the Department) in Melbourne in 2004 (G-documents, annexure L) after the applicant received a Notice of Intention to Cancel his visa, explaining that he was contacted by his former partner after he arrived in Melbourne informing him that she had given birth to his child. Mr Hoffman recorded that he contacted welfare authorities in New Zealand asking them to intervene and remove the applicant from her care. He believed that would occur and that the applicant would be adopted. Approximately 2 years later, his former partner and the applicant, who was then 3 years of age, arrived in Melbourne. The applicant and his father then met for the first time.
During the next 3 or 4 years, the applicant resided with his mother who was self-employed as an escort. His father was permitted access until the applicant was aged 7. It appears from Mr Hoffman’s letter, confirmed also by the applicant in evidence, that his mother then suffered a nervous breakdown and was admitted to the Royal Park Psychiatric Hospital. Mr Hoffman sought advice about seeking an order for custody in the Family Court but under threat from the mother that she would abscond with the applicant, he did not pursue that application. The relationship thereafter between the applicant and his father was sporadic and, according to the applicant, contact between them occurred subject to his mother's mood.
The applicant lived with his mother in a house which she also used for prostitution. He said that he was sexually abused by a male person on 2 occasions in the home. Some years later, after the applicant left home and when he was about 18 years of age, he said that his mother sold the house and took off. He said he has not had any contact with her since then and believed that she started a new life.
The applicant said that his memory of his mother was of a person who was mentally unstable but not schizophrenic (as alleged in some medical reports). He recalled that she did work as an escort and did not regard her as being a suitable mother although he said, she did her best. He said she was not maternal nor an affectionate person, she never cuddled him nor did she ever say that she loved him. He said his circumstances were never brought to the attention of any welfare agencies. His domestic and welfare circumstances became known later by probation officers, after he had commenced offending at a very young age.
The applicant said that all of his problems commenced at school. He said he attended five different schools in Richmond and Collingwood during his primary and early secondary education. From his description, the greatest adverse influence on him was his enrolment in the Collingwood Alternative School which he described as an institution for children who were not fed properly and who were allowed to smoke cigarettes during school hours. He said the other kids were criminals and he then was a stuff up. He described lunchtimes being spent jumping into the backyards of neighbouring houses to steal marijuana plants which he said was his first exposure to illegal drugs. He was then about 13 or 14 years of age. Later, at about the age of 22, he moved into a block of flats with his girlfriend. A local heroin dealer was living in a neighbouring flat. As a result of that proximity, the applicant was exposed to heroin and subsequently commenced a habit.
Whilst living in that flat, the applicant was in a relationship from which 2 daughters, R and T were born. They are now 20 and 12 years of age, respectively. T, an infant, has been cared as a foster child with a secure stable family. She was removed from the care of the applicant and her mother because of their drug dependence, by welfare agencies in Melbourne. In his letter to the Department in 2004, Mr Hoffman said that R was living in Sydney and was then in a stable healthy relationship with her mother, who had remarried. The applicant has had little contact with either of his daughters for many years.
The applicant commenced an apprenticeship after leaving secondary school as a panel beater. His attendance at schooling was very infrequent but he continued to work and although not formally qualified, he regards himself as competent in that trade. He has also worked assembling motorcycles. In 2004, a former employer, Glen Stevens, wrote a letter to the Department (G-documents, annexure M), in support of the applicant being permitted to continue to reside in Australia. He confirmed the applicant’s trade skills and work ethic.
The applicant has a very long criminal history with many convictions. The applicant said that the majority of his criminal history occurred in order to support a drug habit. Additionally, or in the alternative, his criminal history occurred as a consequence of his drug habit.
The G-documents enclosed a certificate from the Australian Federal Police recording all of the applicant’s offences (annexure E). Ms Taylor completed and submitted a detailed analysis of those offences, in documented form. Mr Brown agreed with the analysis. In summary, the applicant was charged with 90 offences for which he appeared in the Children's Court between 7 September 1988 and 21 July 1992. Between 17 August 1993 and his most recent conviction on 17 October 2012, the applicant was charged with 275 offences resulting in appearances before Magistrates’ Courts in Victoria and South Australia. On 7 February 2003 he appeared before the County Court in Melbourne. The analysis records that after the applicant received a Notice of Intention to Cancel his visa on 24 February 2004, he committed 179 offences.
The overwhelming majority of the applicant’s criminal conduct has been offences of dishonesty. Many of those offences have involved theft, break and enter, obtain property by deception and illegal use and driving of motor vehicles. He has been convicted on 7 occasions for offences of violence.
The first conviction for an offence of violence was on 6 March 1998. He was convicted of unlawful assault in December 2001 and intentionally causing injury in June 2002. In February 2003 he was convicted (in the County Court in Melbourne) on one count of recklessly causing serious injury and one count of recklessly causing injury. In April 2005 he was convicted of 2 counts of unlawful assault. He has not subsequently been charged with any offences of violence.
The most serious offences of violence resulted in the convictions of February 2003. Those offences occurred on 22 April 2002, a summary of which is found within the sentencing remarks of Judge Davey in the County Court of Victoria (G‑documents, annexure F).
Although the applicant disputed the circumstances of the offences during his evidence in this review, he also acknowledged that he was then drug affected. His Honour made a similar finding, but without excusing the applicant’s conduct. I accept the summary of the offending as recorded in the sentencing remarks as an accurate description of the circumstances of the applicant’s conduct which gave rise to him being charged.
On the day of the offending, the applicant boarded a tram in Melbourne. He commenced swearing at a passenger seated nearby and then kicked him twice in the face. The passenger moved to the front of the tram and the applicant followed him. The applicant then produced a knife and slashed another passenger twice across his face. That passenger apparently has been left with facial scarring. The applicant fled from the tram and was found the next morning in the vicinity of a railway station. He was in an agitated state. The applicant was also then in possession of a knife. Those offences occurred 9 days after the applicant had been released from gaol following the conviction in December 2001 for unlawful assault. On that occasion, he was also convicted of charges of threatening to kill and possession of a controlled weapon. (The applicant was also convicted on that occasion of theft of a motor vehicle. The period of sentence served for all of those convictions was about 5 months).
The applicant was sentenced to a total period of 3 years and 6 months imprisonment for recklessly causing injury and serious injury (on the tram). His Honour ordered that the applicant be eligible for parole after he had served 2 years and 6 months.
His Honour took account of the applicant's numerous prior convictions, principally for offences of dishonesty. He also considered reports from a forensic psychologist and a psychiatrist and the oral evidence that was given by the applicant’s aunt who is the stepsister of his mother. His Honour became aware of the applicant's traumatic upbringing, including the sexual abuse, the conduct of his mother and her disappearance, and his history of drug abuse. His Honour recorded that the Crown regarded the applicant at the time he committed the offences as being in a state of reduced responsibility because of your paranoid condition induced, it would appear, by the injection of amphetamines into your bloodstream (sentencing remarks at p. 43). It was for that reason the applicant was not charged with more serious offences of causing injury and causing serious injury which would have carried heavier penalties. His Honour also took account of the applicant's guilty plea to each charge.
The applicant acknowledged during this review, when asked to describe his feeling about the impact of the assaults on the victims, that his misbehaviour would have affected them and their families and damaged their confidence. He understood that one of his victims would have permanent facial scarring to which he said I feel horrible. He said he felt remorseful about that incident.
The applicant said he first offended at the age of 14 when he stole a motor car and drove it through suburban Melbourne. Many of his subsequent offences were associated with theft of motor vehicles. He said he initially stole cars because he did not like being at home and stealing cars allowed him to get away. Later, when he was older and independent from his mother, he said he stole cars and committed other acts of theft and burglary to finance his drug habit. That occurred on some occasions by selling the cars. When asked why he had so many convictions for driving whilst disqualified or driving whilst unlicensed, he said he needed to get around.
His last conviction in October 2012 occurred when he was in Geelong after a period consuming alcohol and drugs in the company of others. He had no financial means to return to Melbourne where he was then living. He noticed a BMW in a car yard with its keys in the ignition. He then drove it on the Princes Freeway at speeds estimated to be in excess of 200 km/h. He lost control of the car whilst being pursued by police and struck another vehicle. He estimated that on the occasions that he had stolen motor vehicles, and had driven them at speed, he had been involved in approximately 7 accidents.
Records within the supplementary G-documents disclosed the applicant having been involved in a number of altercations whilst in gaol with other inmates and with prison officers. He said his recollection of time in gaol was horrible and was a process of survival of the fittest.
The applicant has been in a relationship with his girlfriend, Samantha, for about 3 years. She was one of the few people who visited him whilst incarcerated. He said Samantha is a god send. He said that she is stable, determined and inspires him. They share a one-bedroom flat in suburban Melbourne which he described as transitional accommodation. He said the flat was located for him by the Salvation Army at a reduced rent. The applicant said his father paid him money to paint his house before he was last incarcerated. Those monies were used to purchase furnishings for the flat.
The applicant acknowledged that he has been diagnosed with an acquired brain injury and schizophrenia. He said Samantha picks up my triggers when he becomes anxious. On previous occasions when he has become anxious and has felt out of control or violent, he has self-reported to the Alfred Hospital. (The clinical records of those admissions were received as Exhibit R1). He recalled that on 2 occasions he had self-reported to the Alfred Hospital because something was going wrong and he was asking for help. On one or both of those occasions, Dr Leahey was on holidays and he felt lost without him.
He has a case manager with the Salvation Army and has attended Moreland Hall (a drug rehabilitation and counselling facility) as a condition of an intensive correction order made previously by a Magistrate.
The applicant said he has no connection with or knowledge of New Zealand. He does not know of any relatives except for his mother's stepsister (his aunt) who he visited for about 2 weeks when he was aged 12. He said the thought of returning terrified him. He said he had not ever applied for citizenship because until he received the Notice of Intention to Cancel his visa in 2004, he did not know that he was not a citizen. He thought the process of becoming a citizen was complimentary after 10 years of residence.
The applicant said he hopes to be able to remain in Australia to make Samantha, his father and his children (with whom he hopes to reunite) happy. He said he wants them to get to know him as a person who is good and not a person who took drugs and stole from people.
In concluding the history of the applicant’s circumstances which gave rise to the decision of the Minister’s delegate, consideration should be given to assessments of the applicant whilst in gaol.
In May 2009 a detailed analysis of the VISAT status of the applicant concluded that he was at a high risk of reoffending (supplementary G‑documents, p. 94). At a meeting on 15 May 2009 to determine the appropriate classification of the applicant within the Melbourne Assessment Prison, Corrections Victoria recorded that he was then in a methadone program. Although having previously been assessed as a maximum security prisoner, that classification was overridden and his status was lowered because recent offending within the gaol was regarded as less severe than indicated and regard was also given to the remaining period of time to be served. It was also considered that despite the assessment of the applicant being at high risk of reoffending, it was determined that he needed placement in programs which would provide him with drug and alcohol and cognitive skills (supplementary G‑documents, p. 71).
Another finding of the applicant being at high risk of reoffending was made on 29 October 2012 (supplementary G‑documents, p. 70).
On 15 January 2013 the applicant received a letter notifying him that the Department was considering cancelling his visa. The applicant then was detained in the Marngoneet correctional facility which is regarded as a transitional venue for low security prisoners.
While at Marngoneet between January and March 2013, the applicant completed three training programs. A RUSH program informed the applicant of strategies for coping and harm minimisation. The applicant said he learnt to communicate without raising his voice, to listen and not talk over people and to maintain eye contact. An Exploring Change Program equipped him with skills to cope with the consequences of change (outside the prison system) and to prepare him to engage with counsellors. A 12 Hour Drug and Alcohol program taught him the effects of, triggers for use and mechanisms for avoidance of drugs and alcohol. An assessment of his participation during 8 stages of the Drug and Alcohol program records the applicant as being both excellent and extremely motivated (supplementary G-documents, p. 30 ‑31).
The applicant was placed into the Marngoneet kitchen on 19 November 2012 where he was expected to complete structured work orientation. It was then determined that he was not at risk of self-harm or suicide since he arrived at Marngoneet. He was residing in a self-catering flat within that facility (supplementary G‑documents, p. 33). He worked with a qualified chef and learnt to cook. The chef eventually resigned and the applicant alone was responsible for preparing meals for the officer’s dining room. The applicant said after he received the letter of 15 January 2013, he worked hard and was supported by his supervisor. An impressive report of the applicant's performance is found at pages 28 and 29 of the supplementary G-documents. The applicant is reported as being polite and courteous to his supervisor, his caseworker and other staff. He also receives positive feedback from his work supervisor.
The reports of the applicant as described immediately above were, compared to a number of other reports within the supplementary G-documents, remarkable. I asked the applicant whether he could suggest an explanation. He said that after he was last convicted in October 2012, he knew he would receive a letter from the Department (notifying him that consideration would be given to cancelling his visa). I then asked him why he did not conduct himself in an equivalent manner after he received the Notice of Intention Not to Cancel his visa in 2004 and he replied I was then young and dumb.
PRIMARY CONSIDERATIONS
There are four primary considerations that I must have regard to when exercising the discretion in s 501(2) of the Act, namely:
(a) protection of the Australian community;
(b) strength, duration and nature of the person’s ties to Australia;
(c) the best interests of minor children in Australia; and
(d) international non-refoulement obligations.
Protection of the Australian Community
Decision-makers (including Tribunal members) must have regard to the protection of the Australian community from harm as result of criminal and other serious conduct by non‑citizens. Remaining in Australia is to be regarded as a privilege and visa holders must, in return, adhere to an expectation that they will be law-abiding, respect important institutions and not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, decision-makers should have regard to the nature and seriousness of the person's conduct to date (9.1.1) and the magnitude of any risk posed to the Australia community should the person reoffend or engage in other serious conduct (9.1.2). The discussion that follows immediately will concern the criteria found within each of these sub-parts.
The criminal conduct of the applicant in Australia must be regarded as serious. In the absence of any other information, knowledge of the number of his convictions would suggest that he faces an uphill battle in satisfying the Minister and the Australian community that he should be permitted to continue to reside here. He has offended over a 25 year period between the ages of 13 and 37. He and others close to him were able to satisfy the Minister’s delegate in 2004 that he should not be removed from Australia. Despite him being permitted to remain here, he continued to offend on no less than 179 occasions. (Sixty-three of those offences resulted from the same charge, being obtain property by deception. It was submitted that it would have been open to the police to have rolled up those charges and any negative assessment of the total number of charges subsequent to 2004 would be inappropriate. Perhaps that is so, but it does point to the extent of the applicant's criminal conduct and the affect that conduct would have had upon the (many) owners of property illegally obtained by him).
In a letter received by the applicant on 5 July 2004 advising him that the representations made by him and others in support persuaded the Minister’s delegate not to cancel his visa, the following paragraph was also contained within that letter:
The Minister’s delegate decided that you should be warned that a fresh assessment will be made with a view to consider cancelling your visa if you are convicted of any further offences. Although he does not usually add comment, in your case he wrote that you must understand a substantial change is required and further offending will not be viewed sympathetically.
The applicant has been convicted for crimes of violence and the two convictions in 2003 were particularly serious. The sentence also reflected the serious nature of those offences. He then committed a number of unprovoked attacks upon persons which were brutal and involved the use of a knife. In mitigation, the applicant was then severely drug affected and in a report to Judge Davey, a psychiatrist found the applicant to have been in a drug induced psychotic disturbance.
There are a number of reports within the supplementary G‑documents completed by prison officers concerning adverse behaviour of the applicant whilst incarcerated. Some of those events report that the applicant had been in fights with other prisoners. The applicant said some of the reports were inaccurate. He also said some of his behaviour could be explained and/or he was provoked.
The penalties imposed were either temporary loss of privileges or small fines. Whilst I do not dismiss these events they were not subject to charges or a trial as if he were a civilian.
The applicant has an extensive criminal history that cannot be ignored. However, the overwhelming majority of the applicant's offences have involved crimes of theft and dishonesty. A significant portion of those crimes has involved motor vehicles.
The offending with respect to motor vehicles has been particularly serious. The applicant has illegally obtained possession of motor vehicles, often driving them far in excess of permitted speed levels and often crashing them. That conduct alone has put members of the public and pursuing police at great risk. The applicant explained that on some of the occasions that he stole cars it was to get away from his home and the influence of his mother and other persons with whom she associated. On other occasions, cars were stolen by him whilst he was influenced by alcohol and/or drugs.
The theft of other property, either acquired by him by deception or by breaking and entering into premises would have caused loss to the property owners (and possibly insurance companies) and the properties into which the applicant entered may have also been damaged.
The applicant explained that his criminal offending was influenced by his drug habit and property illegally obtained was sold to finance that habit. The applicant was never involved in trafficking.
Since 2002 the applicant has been diagnosed with schizophrenia and more recently, Ms Walters diagnosed him with an acquired brain injury which was the subject of extensive cross-examination. Ms Walters was challenged about the validity of that diagnosis and her qualifications in making that finding. I could not find in any of the other medical material that other clinicians had made a similar finding. I do not discount the diagnosis made by Ms Walters. However, I reiterate the view I expressed at the hearing (and recorded earlier in this decision), namely that it would have been preferable to have heard evidence from those clinicians who prepared reports, especially Dr Leahey with whom the applicant apparently has had a close professional relationship for many years. That relationship is recorded on a number of occasions within the clinical notes of the Alfred Hospital. On 24 September 2012 it was recorded that Dr Leahey was providing significant clinical support. I also note that the Mental Health Review Board was satisfied in May 2011 that it was intended by treating practitioners to eventually discharge the applicant back to the care of Dr Leahey (who, it was recorded, was willing to treat him and with whom the applicant was willing to re-engage).
The diagnosis of schizophrenia is beyond doubt and is well documented. It appears to be the illness which Dr Leahey has treated and prescribed medication.
The applicant did offend on many occasions after he received advice in 2004 that his visa would not be cancelled and did so, despite the warning contained within the letter.
The applicant explained that he was then young and dumb. The applicant was 30 when he received the warning in 2004 and therefore, well into adulthood. I do not accept that he lacked the maturity to appreciate the consequences of his actions. However, I do accept that his judgement may have been impaired as a result of his psychiatric state and substance abuse. His noteworthy improvement in conduct towards the end of 2012 and earlier this year would suggest that he is capable of improved behaviour.
In concluding consideration of the criteria at 9.1.1 of Direction 55, I am satisfied the offences committed by the applicant, together with the duration and repetition of them, causes me to find that his conduct must be regarded very seriously.
An assessment of the criteria at 9.1.2 requires regard being given to the risk facing the Australian community.
On balance, the conduct of the applicant to date, excepting his improved and demonstrated conduct whilst in Marngoneet, must be viewed very seriously. That his criminal conduct has occurred over many years, despite punishment, including periods of imprisonment, together with virtually ignoring the warning he received about the consequences of reoffending after 2004, does point to the applicant being at risk of reoffending.
Despite his expressions of remorse, training and conduct while incarcerated, I cannot be confident that he will not expose the Australian community to a risk of harm if he is permitted to remain in Australia. His pattern of behaviour does not confidently allow any other conclusion. If he does reoffend, member/s of the community will be at risk either because of violent outbursts fuelled by substance abuse or driving at excessive speeds in a stolen car. There was little evidence to support the applicant’s rehabilitation which only fortifies my view under this part of Direction 55.
I am satisfied that considerable weight should be found against the applicant with respect to the criteria under first primary consideration within Direction 55.
Strength, duration and nature of the persons ties to Australia
Paragraph 9.2 records that when considering the period of time the person has resided here, regard must be given to whether offending commenced soon after arriving (which will attract less weight) and the time spent by the person contributing positively to the Australian community (which will attract greater weight). When reflecting on the principles at 6.3(4), a higher level of tolerance of offending is conceded in favour of persons who have lived here most of their life.
Paragraph 9.2 requires an examination of the strength, duration and nature of family, social and employment links with Australian citizens, residents or others having an indefinite right to remain here.
The applicant arrived here at the age of 3. He is now 39. But for a period of 2 weeks when he was 12, he has lived exclusively in Australia. Until he received the notice in 2004, he believed that he was an Australian citizen.
Prior to the commencement of his relationship with Samantha, the nature of any family association with Australia was only his father, his aunt and until her disappearance, his mother.
It appears that the relationship between the applicant and his father has been distant and spasmodic, although it would appear that attempts have been made in recent years to improve that relationship. The relationship with his mother was tenuous and it would appear that she was disinterested or incapable of having a relationship with him. Since her disappearance when he was a relatively young man, he has of course had no relationship with her. He does not know whether she is alive.
The applicant's aunt, who was the stepsister of his mother, wrote a letter in support of the applicant in 2004. The contents of the letter could be perceived as indicating that she was familiar with the applicant and was offering a relationship of strength and supervision which he had never known. However, that relationship ended soon after he was notified that it was not intended to cancel his visa. The applicant said he left her home because she had been bagging his mother. The applicant has not subsequently had any association with his aunt.
There was no evidence of any other family or social connection in Australia. The applicant has no contact with the mother of his 2 daughters. He has not had any contact with his daughters for many years and said that he has refrained from seeking contact because of his drug addiction and his mental illness.
He has ties with Glen Stevens, his former employer, who the applicant said would be prepared to re-employ him.
Other than his employment, I cannot find, in the absence of evidence that the applicant has positively contributed to the Australian community.
A significant consideration weighing in the applicant’s favour under this part of Direction 55 is the length of residence in Australia. The applicant arrived here at the age of 3 and he is now aged 39. Therefore, he has lived in Australia for 36 years. He completed his schooling here and he has been raised here. With the exception of 3 years and 2 weeks, Australia is all that he has known. I accept that he has very few family or social links with Australia. His ties to Australia, especially in recent years, have been confined to a relationship with his father, the relationship with Samantha for about 3 years and, having regard to the nature of the relationship expressed by the applicant in evidence, with Dr Leahey on a professional basis. There would appear to be, on the applicant's evidence, a relationship of employment both past and potential with Glen Stevens. However he did not give evidence in this review. There was no evidence of the applicant having any friends in Australia.
His connection, confined to Samantha, his father, Dr Leahey and Glen Stevens is important and fulfils significant family, social, employment (and medical) links by him, to Australia. For reasons which will also appear later, I think removing the applicant from Australia will be catastrophic.
On balance, I am satisfied that weight should be found in favour of the applicant under this part.
Best interests of minor children in Australia and affected by the decision
The applicant has 2 children who are both Australian citizens. One is now an adult. T is an infant and is currently 12 years of age. The applicant has not had any contact with her for many years.
There was no evidence about whether it is, or is not, in T’s best interests for the applicant's visa to be cancelled. I think it may reasonably be assumed – and subject to the applicant's future conduct – that it would be preferable for their relationship to be restored. However, nothing immediately points to that occurring. The applicant said during the hearing that he would hope to make her happy and be regarded by her as a person who is good. I think the prospect of that occurring would largely be by his initiative. To date, and adopting the language of this part of Direction 55, there has been long periods of absence and limited meaningful contact between the applicant and T. I also note that she was not recorded in a personal details form completed by the applicant on 18 January 2013 (G-documents, annexure C).
Nothing immediately points to the applicant having a meaningful role with T in the future nor does anything suggest that his absence will have a negative impact on her, although her views are not known.
In the absence of evidence, I am not satisfied that the best interests of T would be affected by the applicant’s removal. She is in a stable and secure relationship with a foster family. Consideration of this part does not give weight to the applicant against cancellation of his visa.
International non refoulement obligations
This part of Direction 55 does not apply to the circumstances of the applicant.
OTHER CONSIDERATIONS
Paragraph 8(3) of Direction 55 provides that primary and other considerations may weigh in favour of, or against refusal or cancellation of the visa. Paragraph 8(4) records primary considerations should generally be given greater weight than the other considerations. The inclusion of the word generally, indicates that it does not follow that primary considerations must be given greater weight than the other considerations. This issue was considered by Tracey J in Schuster-McFadyen v Minister for Immigration and Citizenship and Another (2011) 124 ALD 68. In allowing the appeal, His Honour said at [32] that it was open to the Tribunal:
…consistently with the ministerial direction, to conclude that the “other considerations” which weighed in the applicant’s favour could carry more weight than the two adverse primary considerations.
There would be an adverse impact on the applicant's father if the applicant loses the right to remain here. I am satisfied that although the relationship has been distant, the father’s letters suggest concern for the applicant. Because of his current serious illness a departure of the applicant almost certainly will end any meaningful and personal contact between them.
I am not satisfied that there would be any impact on Australian business interests. Any opportunity to reunite with his children would be lost but might only be temporary. There would be no impediment on them visiting him or him communicating with them by modern and readily available forms of communication. There is a risk, as found earlier, that if the applicant’s visa is not cancelled that the Australian community may be an adversely affected by future criminal conduct. There is no evidence that past victims of the applicant would be at risk.
If the applicant were returned to New Zealand, I am not satisfied that there would be any language barrier facing him. However, I am satisfied that should he return to New Zealand, he would have considerable difficulty establishing himself, having regard to his age, his period of absence and his mental health.
The Minister’s representative provided a publication from the Ministry of Health in New Zealand entitled Mental Health and Addiction – Service use 2009/10 (supplementary G-documents, p. 191).Its index refers to the provision of mental health services directed at persons who suffer addictions. Specific services provided include referral teams and case managers for persons who are alcohol and drug affected. The publication provides statistics about the age, sex and ethnicity of persons to whom services are available and provided. I have no doubt that there are adequate facilities available in New Zealand from which the applicant could receive benefit. I am also satisfied that there are adequate mental health facilities of a public nature from which the applicant could receive treatment for his schizophrenia and his acquired brain injury. I am also satisfied that as a citizen of New Zealand, the applicant would be entitled to the above services.
I make that finding on the basis of the contents of the above document and from evidence heard in other similar applications where the applicant was a citizen of New Zealand. I am also satisfied, on the basis of previous applications, that economic support, in the form of a pension or a benefit, would be available to the applicant.
While I acknowledge that there are treatment facilities and government pensions in New Zealand, I am satisfied that to return the applicant to New Zealand would be harsh and unconscionable in the absence of any family, friends or acquaintances who could be of assistance to him, initially and long-term, in locating accommodation, employment and support services. In addition to adapting to life outside of prison and managing both his mental health and substance abuse, the applicant would have to adapt to a country which is foreign to him – alone. He would be returning to a country from which he has been absent for 36 years and from which he was removed at the age of 3. But for his place of birth, the applicant might reasonably be treated in all other respects as an Australian person.
Ms Walters assessed the applicant’s cognition at the borderline impaired range and recommended that on release from prison he should be linked with appropriate agencies to ensure maximum support (Exhibit A1, p. 10-11). The importance of ongoing supervision and support was also emphasised by Ms Lechner, psychologist in her report dated 22 August 2012 (Exhibit A4). In the absence of friends and family in New Zealand, it is difficult to comprehend how the applicant will make contact with appropriate agencies and medical professionals, having regard to his mental health and his reduced cognitive functioning. In Australia, he has a treating psychiatrist, a case manager from the Salvation Army, his father and his partner, Samantha who the applicant describes as being a stabilising influence on him (Exhibit A1, p. 6).
Having regard to the applicant’s health and the lack of support, especially emotional, that will be available to him in New Zealand, I am satisfied that he will face significant impediments if he is removed from Australia. Therefore, the factor in clause d) weighs heavily in favour of the applicant. I note at this stage that in exercising my discretion, I am not limited to the other considerations as set out in paragraph 10.
As an infant the applicant was denied the care, love, support, nurturing and stability of a family. His mother was a sex worker who received income as an escort. She also suffered schizophrenia. She did not adequately care for the applicant nor provide him with secure accommodation, supervision or nourishment, both materially and emotionally. The home was used by her as a brothel and which was frequented by men, one of whom sexually abused the applicant on more than one occasion.
During much of his childhood, the applicant’s father, who at all times resided in Melbourne, was absent and did not seek custody orders. On the evidence heard in these proceedings, it is very likely that he would have succeeded in obtaining custody or at worst qualified for access.
Listening to the applicant’s evidence, it soon became obvious that he did not have the benefit of mature persons in his life that could act as role models and provide him with support and guidance. That the applicant first offended at the age of 14 by stealing a car to get away from home, speaks volumes of the disinterest and absence of parenting skills on the part of his mother.
The applicant’s conduct has been gross and frequent. But there is no evidence that any other persons ever intervened to instruct or adequately educate or rehabilitate him. He did not come to the attention of welfare agencies and services which are now readily available (and were available, later, to ensure that T was removed and fostered). A discharge summary dated 2 July 2010 from the Alfred Hospital provides that the applicant’s early life was disrupted … as a result he had poor attachment and disruptive behaviour from an early age (Exhibit R1). Had child welfare agencies intervened, the applicant’s drug abuse and offending from an early age may not have eventuated. Much of his offending was impulsive and connected with his poor mental health. The Australian community should bear some responsibility for the absence of intervention and should not, in my view, dismiss the applicant by returning him to his place of birth. Ms Taylor submitted that the Australian community cannot wipe its hands by removing him. I agree with her submission.
Had the applicant at an early age, had access to appropriately qualified case managers and/or counsellors, and later learnt the skills from the courses he has recently completed at Marngoneet, he may well have been able to exercise a degree restraint from impulsivity and offending. The irony of learning those skills whilst incarcerated is obvious but hopefully not too late.
An unfortunate feature of this review, perhaps complicated also by the rigid time restraints upon applicants, was the absence of evidence which could be tested and examined during the hearing. In many other applications under s 501 of the Act, evidence has been obtained and persons have given evidence largely because of a supportive network of family and friends. That was not available to the applicant. I regret that the persons who wrote reports in support of the applicant, except for Ms Walters, were not available to give evidence. Despite his absence, Dr Leahey has treated the applicant from 2002. The applicant is very favourable disposed to him and he is identified in the clinical notes of the Alfred Hospital as the applicant’s treating physician.
The principles under Direction 55 at paragraph 6.3(3) record that criminal offending, other conduct and the harm that might occur and be caused, if repeated, may be regarded so seriously that the risk of similar conduct in the future is unacceptable. It also provides that despite strong countervailing considerations there may be insufficient reasons to justify not cancelling a visa.
Part 6.3(4) provides that Australia may afford a higher level of tolerance of criminal and other serious conduct in relation to a non-citizen who has lived here for most of their life or from a very young age.
The applicant succeeded in satisfying the Minister’s delegate in 2004 that his visa should not be cancelled. He will succeed in this review because I am satisfied that the decision under review for all of the above reasons, should be set aside. I would hope that he understands, without predicting any future outcome that he must surely accept that continuing to offend is more than likely to be brought to the attention of the Minister and he may face considerable difficulty resisting an application to cancel his visa.
When asked during this review why he should be given another chance to reside in Australia, the applicant said:
I know this is the last chance. I'm too old to keep offending. I have accommodation, job, counselling, girlfriend, psychiatric care. If I can stay, I will not let you down. Dad's crook. Don't want to lose him. I want him to be proud of me.
Those words will inevitably be read back to him, if he reoffends and if he decides to contest an application in the future to cancel his visa. Those words will also come back to haunt him and if he is to be taken on trust, as I do, I would expect that he would not be so foolish to re-offend.
He has demonstrated, although only recently, that he is capable of working hard and earning the respect of others. He will face difficulty being released into the community. However, he has the benefit of a relationship which is stable and he has secure accommodation. He has established caseworkers available to him and has been prepared to seek assistance from healthcare professionals when he feels as if he is about to become out of control. It appears also that he will be re-employed as a panel beater which will entitle him to income and hopefully, some stability and security.
On balance I am satisfied that the applicant should be entitled to remain in Australia. I do not think that he has forfeited the privilege of continuing to hold a visa nor do I think that the risk of future harm is unacceptable. The factors relevant in the exercise of the discretion at this part, do, in my view, carry greater weight than the primary considerations.
I accept that he has an extensive criminal record which spans over many years and viewed in its entirety, his conduct is very serious. He does pose a risk that the Australian community deserves to be protected from. However, he arrived in Australia at the age of three and this is virtually the only country he has ever known. He has no friends or family in New Zealand to offer support and all those close to him reside in Australia. In addition to his substance abuse, the applicant suffers from mental illness for which he needs ongoing treatment and support. On balance the weight in favour of the applicant under the other considerations exceeds the weight to be found against him under the primary considerations. The net effect of this balancing exercise causes the scales to tip in the applicant's favour.
DECISION
The decision under review is set aside and in substitution I am satisfied that the visa presently held by the applicant permitting him to reside in Australia should not be cancelled.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member................................[sgd]........................................
Associate
Dated 4 July 2013
Date(s) of hearing 25 June 2013 Counsel for the Applicant Ms J. Taylor Solicitors for the Applicant Victoria Legal Aid Counsel for the Respondent Mr D. Brown Solicitors for the Respondent Australian Government Solicitor
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