Stanczyk and Minister for Immigration and Multicultural Affairs

[2000] AATA 1050

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 1050

ADMINISTRATIVE APPEALS TRIBUNAL)
  N° V00/1100
GENERAL  ADMINISTRATIVE DIVISION)
  KATARZYNA STANCZYK
  Applicant
  MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:              15 November 2000
Place:            Melbourne

Decision:The decision under review is set aside, and a decision substituted that the discretion to cancel the applicant's visa under section 501(2) of the Migration Act 1958 not be exercised.

(sgd) G.L. McDonald
  Deputy President
STANCZYK and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Application Nº V00/1045
Deputy President G.L. McDonald
Melbourne
Wednesday, 15 November 2000
IMMIGRATION — cancellation of permanent residence visa on character grounds — applicant migrated to Australia from Poland with her father as a child at age 10 — abandoned by father 12 months later — placed into foster care — numerous criminal convictions for less serious crimes — fails to pass the character test due to substantial criminal record — whether discretion should be exercised — Direction Nº 17 — seriousness of the crime — risk of recidivism — community expectations — compassion — decision set aside

Migration Act 1958 ss.499, 501(2), (6), (7)(c) and (d), (12)

Extempore Reasons for Decisions

This is an application for a review of a decision of a delegate of the Minister cancelling Ms Katarzyna Stanczyk's permanent residence visa under section 501(2)(b) of the Migration Act 1958 ("the Act"). The visa is cancelled because it is claimed Ms Stanczyk does not pass the character test found in section 501(6)(a) of the Act, i.e. she has a substantial criminal record as defined by section 501(7) of the Act.

Section 501(7) sets out a number of circumstances as to what will constitute a substantial criminal record including, in paragraph (c), that the person has been sentenced to a term of imprisonment of 12 months or more and, in paragraph (d), the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more. While the delegate's decision was based on paragraph (c), in fact there was no sentence of imprisonment of 12 months or more for any one offence in accordance with the definition of sentence found in section 501(12). Before the Tribunal, Ms Hanstein for the Minister, abandoned reliance on paragraph (c) in favour of paragraph (d). The Tribunal is of the view that Ms Stanczyk's sentences fulfil the criteria of section 501(7)(d) and that, accordingly, she has a substantial criminal record and does not pass the character test.

It follows the only issue is as to whether the discretion found in section 501(2) of the Act ought be exercised in Ms Stanczyk's favour. The exercise of that discretion is governed by Part 2 of Ministerial Direction No. 17 ("the Direction"), issued pursuant to section 499 of the Act. That Direction is binding on all decision-makers including this Tribunal.

Clause 2.2 of the Direction requires the Tribunal to have regard to three primary considerations as follows:

(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 relationship between a child or children and the person under consideration, the best interests of the child or children.

Clause 2.2 of the Direction requires that decision-makers should note that no individual consideration can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa.  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.

I shall deal first with Ms Stanczyk's offences and sentences.  There are a variety of offences including stealing, criminal damage, recklessly causing injury, receiving stolen goods, unlawful possession, burglary, unlawfully on premises, possessing heroin, using heroin, and possessing cannabis.  In relation to that great variety of offences, there are also a variety of punishments that have been imposed including community based orders, fines, suspended sentences and imprisonment by intensive correction order.

The most recent offences were committed last year.  All of the offences that you have committed have been dealt with in the Magistrates' Court of Victoria.   The most serious of the offences are clearly the recklessly causing injury offences and, in particular, that committed against a Ms Varsaci on 12 May 1999 in which, reading from the police brief, a knife was used to strike the victim in the stomach region causing a puncture wound.

Despite the use of the knife the victim does not seem, fortunately for you, to have incurred a serious wound.   There is no evidence, for instance, of the need for hospitalisation.   The motives for the fight and another occurring a few days before between you and same victim appears to be related to what you claim as a misunderstanding as to your relationship with the victim's boyfriend.

I am satisfied that offence and your numerous other offences are, however, at the lower end of the very serious crimes mentioned in clause 2.6 of the Direction.   In viewing your overall criminal conduct, whilst acknowledging its persistence, I would be bound to conclude it as being within the petty and nuisance category, rather than of the serious heavy category of crime.   However, there is a real risk of your repeating such offending.

In terms of the Direction, I doubt your removal from Australia would serve to deter others from the commission of such crimes.   That, in my view, is not a factor upon which I place much weight.  

Now I turn to your personal circumstances.   Of these, I can say this Tribunal in its various jurisdictions sees people in a large variety of unfortunate situations, many with sad and deprived backgrounds.   Your background as a child must however count as one of the most unfortunate I have encountered in 12 years sitting on this Tribunal.

Born in Poland, rejected by your mother at the age of three, you were brought to Australia by your father at the age of 10.   The purpose of bringing you to Australia was to have your grandmother and step grandfather assist in your up bringing.   After a year, and apparently without first telling you, your father returned to Poland permanently.  You have had no contact with your mother since the age of three.   You do not know her whereabouts, you do not even know whether she is alive or dead.   You described your father as being your hero, and it is obvious he has deserted you and there has been no contact between you and your father since his return to Poland.  Your grandmother and step grandfather assumed control of you.  Under their guardianship you claim to have been worked hard on their farm and it is undisputed that eventually you were placed into the care of the Victorian Community Services Department ("Community Services") and this seems to have followed your receiving beatings at the hands of your grandmother.

You were placed in foster care and with the apparent knowledge and tacit consent of Community Services, you were permitted, at the age of 15, to live in a de facto relationship with a male who was 19 years old.  Subsequently, at the age of 16, you had a child to a different man and you have given that child up to adoption.  In relation to that adoption you have shown, I might say, a considerable maturity recognising that your personal circumstances are such that they would not, at the moment, benefit the child in terms of its up bringing and consequently you have, as I say, given the child for adoption.

With respect to the child, community understanding and attitudes to adoption now acknowledge the need in cases where the child wants to trace his or her natural parents, to accommodate that occurring.  Your removal to Poland would make that process difficult, if not impossible, for your child.  The nature of your relationship to the child, because of your appreciation of the child's circumstances, is currently remote.  That may not necessarily always be the case.

Turning to the "other considerations" contained in clause 2.17 of the Direction, you have a strong tie to Australia in that you believed yourself to be an Australian citizen.  You do not identify as being a Polish citizen and you would regard it, and it would in fact be, a hardship to you if you were returned to Poland.  While you have no family in Australia, you also have no desire, as a result of their abandoning you, to reconnect with your family in Poland.

You have no other friends and no support from anybody else in Poland if you were to be returned there.  You do have some support in Australia from the authorities and obviously from your friends.  I accept that you understand the Polish language but that you now identify English as your primary language.  I also accept that you have little contact and indeed no expressed interest in living a Polish lifestyle.

I have identified it as a possibility that you may re-offend.  The Government's policy with respect to this is set out in clause 2.10 of the Direction where the following factors are to be taken into account:

(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation of a visa;

(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour; and

(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

You are certainly not in that first category at this stage.  If you commit any further offences, you will be in that category as a result of these proceedings, and as a result of already having your visa cancelled.   I accept that it has come somewhat as a shock to you that you are not in fact an Australian citizen and are liable to deportation.

In relation to the second category, I accept that you have numerous previous convictions.  I also accept, in terms of their seriousness, they are at the lower rather than the higher end of the scale of criminal conduct.

In relation to the third category, you have had both alcohol and drug addiction problems.  During your periods of imprisonment, you have completed two residential drug programmes.  Ms D. Harrison, a prison psychologist, provided a statement and gave evidence to the Tribunal yesterday, in which she attested to your motivation to participate in those programmes which she told the Tribunal were voluntary and which required you to remain drug free during the course of undertaking the programmes.

There was a similar report from a Ms S Dane who provided a report (G documents page 56) in which she says you have been an extremely productive and positive member of the programme and it has been a pleasure working with you, that you have been open and receptive to learning and willing to do the difficult work required to make a change in your life.  She states in her report:

Katie realises the importance of continuing the work now started and [is] aware of the difficulty she will have to face.

The report goes on to say that it is their earnest hope that your experiences and achievements in the programme will help you to prepare in some way for the many challenges ahead and the realisation of your goals.

You have many issues to face.  Undoubtedly there may be, as the evidence showed, occasional lapses, and in particular you told the Tribunal that you had used heroin three or four times following completion of the programme and, in that respect, the Tribunal accepts what you say as being an honest appreciation of your circumstances.

I am satisfied, as a result, that with some success and perhaps a greater deal of expectation in the future that your drug and alcohol dependence will be something that you will be able to control and, as a consequence, the rate of your re-offending will also lessen.  Hopefully disappear altogether.

As Ms Hanstein pointed out, compassion is a consideration arising under the primary consideration of the expectations of the Australian community.

Your background and circumstances would, in my opinion, be taken as warranting compassion by the Australian community.  In the end, a balance has to be reached between the primary considerations and the other considerations identified in the Direction.  Having carefully considered all of the evidence and giving due weight to the primary considerations, I am satisfied that your visa should not be cancelled. 

Accordingly, the decision under review is set aside, the matter is remitted to the delegate with a direction that your visa not be cancelled on the basis of your failing the character test.

It means you have succeeded in the application.  Now, I don't want to see you again.  If you come here again, I certainly won't be the person hearing the matter but you can rest assured that you would be highly unlikely to succeed a second time before the Tribunal.  Now just bear that in mind if you are tempted to commit any offences and walk away from them.  I am sure you have got the strength of character to do that.  It is up to you now.