Stephen Scanlan and Minister for Immigration and Citizenship

[2012] AATA 202

[2012] AATA 202  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0233
Re	Stephen Scanlan
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	5 April 2012
Place	Sydney

The decision under review is affirmed.

...............................[sgd].........................................

Senior Member A K Britton

CATCHWORDS

MIGRATION – visa cancellation – history of relatively less serious offences – entrenched alcohol abuse – lack of social support – risk of reoffending – scope of consideration of best interests of child – emotional hardship of applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) - ss 499, 501, 501(1), 501(7)(c)

SECONDARY MATERIALS

Direction [no. 41] – Visa refusal and cancellation under s 501

Convention on the Rights of the Child

REASONS FOR DECISION

Senior Member A K Britton

5 April 2012

1. New Zealand citizen, Mr Stephen Scanlan, has lived in Australia for the past 16 years. He has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa.  For the reasons that follow I have decided to affirm that decision. This means that Mr Scanlan will be required to return to New Zealand. 

2. Section 501 of the Migration Act 1958 (Cth) (the Act) confers on the Minister, and the Tribunal acting as substitute decision-maker, the power to cancel a visa where the visa holder does not pass the “character test” because he or she has a “substantial criminal record”. Mr Scanlan has a “substantial criminal record” because he has been sentenced to a term of imprisonment of 12 months or more and therefore the discretionary power to cancel his visa is enlivened (ss 501(1), 501(7)(c) of the Act). In deciding whether that power should be exercised, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.

3. The Direction instructs the decision-maker to take into account four “primary” and, where relevant, a number of “other” considerations. The primary considerations are (cl 10(1) of the Direction):

   (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

   (b) whether the person was a minor when they began living in Australia;

   (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

   (d) relevant international obligations, including but not limited to:

   (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

   …

4. Listed at cl 11 of the Direction, the “other considerations” include the visa holder’s: family and other ties to Australia including any genuine marital relationship; age and health; links to the country to which they would be removed; level of education and the hardship they and their immediate family would suffer if they were removed. The Direction provides “other” considerations should generally be given less weight than primary considerations (cl 11(2) of the Direction). 

   PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

5. The Direction notes (at cl 5.1(1)) that the objects of the Act are to regulate in the national interest the coming into and presence in Australia of non-citizens and that, in this regard:

   (2) … [I]in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

6. The Direction provides that factors relevant to the assessment of the risk of harm to the Australian community posed by the visa holder’s continued stay in Australia include (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated (cll 10.1.1, 10.1.2).

   Seriousness and nature of the relevant conduct

7. The Direction states at cl 10.1.1(3) that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be had to the extent of the offender’s criminal record including:

   (i)the number and nature of offences;

   (ii)the period between offences; and

   (iii)the time elapsed since the most recent offence.

8. In the assessment of the seriousness and nature of the conduct the following factors are also to be considered:

   (a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

   (b) any relevant factors the person provides as mitigating factors;

9. Mr Scanlan’s criminal history is set out in Annexure A of these Reasons. It reveals that he has offended on a regular basis since shortly after he arrived in Australia. He has been in custody since his most recent offence — contravene domestic violence order —committed while he was on parole.

10. While a number of the offences for which Mr Scanlan has been convicted, such as assault, are listed by the Direction as examples of “serious offences” none could be described as falling within the high end of the scale.  Custodial sentences were imposed on only two occasions and all but Mr Scanlan’s most recent offences were dealt with by way of a fine, suspended sentence or good behaviour bond.  The remarks made by the sentencing judges indicate that the regularity of the offending, together with Mr Scanlan’s lack of support within the community, were central to the decisions to impose custodial sentences (see for example R v Scanlan (unreported, Local Court (NSW), Magistrate Railton, No 72/11, 22 February 2011).

11. From the limited material before me, it would appear that Mr Scanlan’s most serious offences were committed in 2009. The first, “armed with intent to commit serious indictable offence” involved Mr Scanlan attending the premises of a former employer, smashing a computer with a baseball ball bat and taking money from the till that Mr Scanlan believed was owed to him. In the second — “common assault” — Mr Scanlan struck a fellow soup kitchen guest on the temple. As the Minister points out, over time, Mr Scanlan’s offending conduct has become more serious. Nonetheless it remains at the low end of the scale.

12. According to Mr Scanlan, “his bark is worse than his bite”. He points out none of the victims of his offences sustained physical injuries. While throughout 2011 he breached apprehended violence orders, there is no evidence that he was physically violent towards the subject of those orders, who I will refer to by the pseudonym “Ms A”. In a letter to the Tribunal dated 8 March 2012 in support of Mr Scanlon’s application, Ms A described him as “a kind and generous old-school gentleman” who “has a bit of a drinking problem”.

13. The evidence reveals, and Mr Scanlan accepts, that there is a strong link between his offending conduct and alcohol use. Psychiatrist Dr Julian Parmegiani, who assessed Mr Scanlan at the request of the Minister, believes that Mr Scanlan suffers from alcohol abuse. In a report dated 22 February 2012, Dr Parmegiani recorded that Mr Scanlan had been drinking harmful amounts of alcohol since his mid-teens and continued to do so after his arrival in Australia. Mr Scanlan disputed, as recorded by Dr Parmegiani in his report, that he drank 10 to 12 “long necks” of beer each day. He claimed that while he sometimes consumed that amount, as a pensioner he simply could not have afforded to do so on a regular basis.  While he agreed that he had been drinking since his mid-teens, Mr Scanlan claimed that he only began to drink heavily after a work accident in 1999, which left him with significant injuries.

14. According to Dr Parmegiani, as a result of long-term alcohol use, Mr Scanlan suffers a degree of cognitive impairment which has adversely affected his impulse control, insight and forward planning.

15. Mr Scanlan claims not to have used alcohol throughout his most recent period of incarceration, a period of some six months.  In 2008, Mr Scanlan attended, but did not complete, a residential alcohol rehabilitation program.  He testified that after that course, he abstained from alcohol use and attended AA meetings, but started to drink again when he found himself homeless about 12 months later. The records indicate that the period of abstinence was probably six months. In these proceedings, Mr Scanlan stated that on release, he intends to stay off alcohol and attend AA meetings.

16. In Dr Parmegiani’s opinion, if he chooses to do so, Mr Scanlan could continue to abstain from alcohol use. He thought that while there was no need for Mr Scanlan to attend medically supervised alcohol detoxification, he would benefit from attending AA meetings and taking medication to reduce his cravings for alcohol. In Dr Parmegiani’s opinion, Mr Scanlan’s criminal behaviour occurred partly as a result of acute alcohol intoxication and partly as a result of poor impulse control. He thought that abstinence from alcohol would ensure he would not offend while intoxicated and, with the passage of time, he should acquire a capacity to better comply with social norms.

    Protection of the Australian community: findings and conclusions

17. This consideration requires an examination of the seriousness of Mr Scanlan’s offences and the risk of that conduct being repeated. Mr Scanlan’s history is not that of a professional, organised criminal nor of a person who is fundamentally dangerous, violent or depraved, but rather of a person who lacks impulse control and is prone to misbehave when under the influence of alcohol. When caught, he pleaded guilty to his offences, demonstrating a general attitude of remorse. 

18. While it is impossible to predict with certainty whether Mr Scanlan will abstain from alcohol after release, the odds, in my opinion, are stacked against him. Upon release, he will have very limited support. He has no offer of accommodation apart from temporary accommodation organised by the parole services. For reasons to which I will return, the likelihood that he will receive some support from Ms A is at best uncertain. While Mr Scanlan stated that he intends to continue to abstain from alcohol use and, on his release, attend AA meetings, the flavour of his evidence was that he had no firm plans and had given the issue little thought. On his release, he is likely to once again confront the very factors he believes caused him to take up heavy drinking in the first place – boredom and depression. In the absence of support, it is difficult to see how Mr Scanlan will be able to resist the temptation to use alcohol. If this were to reoccur, I think it more likely than not that he will go on to reoffend.

19. In my opinion, there is a real risk that if Mr Scanlan were to remain in Australia, he would go on to reoffend. This consideration weighs against Mr Scanlan, but less heavily than if the type of harm the community would be exposed to by his offending was more serious in nature. 

    PRIMARY CONSIDERATION 2:  AGE WHEN MR SCANLAN BEGAN LIVING IN AUSTRALIA

20. Mr Scanlan came to Australia as an adult at 30 years of age and therefore is not assisted by this consideration.

    PRIMARY CONSIDERATION 3: TIME RESIDENT IN AUSTRALIA

21. The Direction states (at cl 10.3(1)):

    Reflecting the fact that the longer a period of residence in Australia, the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

22. Mr Scanlan was resident in Australia for less than 12 months when he committed his first criminal offence. He has limited ties to the Australian community. This consideration therefore counts against Mr Scanlan notwithstanding his significant period of residency in Australia.

    PRIMARY CONSIDERATION 3: BEST INTERESTS OF CHILDREN

23. Prior to his most recent period of incarceration, Mr Scanlan shared a house for about six months with Ms A and her (then) 11-year-old daughter. Mr Scanlan claims that he was in a de facto relationship with Ms A and close to her daughter. The Minister contends that this consideration — best interests of children — has no application where, as in Mr Scanlan’s case, the visa holder is not in a parental-type relationship with the subject child. Before addressing that issue, it is necessary to examine the relationship between Mr Scanlan and Ms A and her daughter. To protect her anonymity, I will refer to the latter as, “the child”.

24. Mr Scanlan and Ms A met in late 2009. Twelve months later, Mr Scanlan moved into a house Ms A was then sharing with another woman. He slept on the lounge. A dispute arose over the housemate’s failure to move out, despite announcing her intention to do so. Mr Scanlan was convicted of assaulting the housemate and given a two-month custodial sentence. Mr Scanlan and Ms A contend that Mr Scanlan was wrongly convicted and that it was the housemate, not Mr Scanlan, who had been aggressive and violent.

25. Upon Mr Scanlan’s release from prison, he and Ms A leased a two-bedroom house. Mr Scanlan claimed that he and Ms A were “partners” and shared a bedroom. He claimed that they lived as a family sharing meals and domestic tasks.  He also claimed that he spent a lot of time with the child. Mr Scanlan said he felt close to the child but was cautious of the need not to pressure her to accept him as a father figure. On his account, responsibility for the child’s welfare in matters such as schooling and the like, fell to Ms A.

26. In a statement tendered in these proceedings prepared by Ms A, she stated that when she first started living with Mr Scanlan they “became very comfortable with each other” and talked of “taking it a step further and getting serious even a relationship maybe marriage someday”. Ms A said that the relationship did not progress, largely because her daughter hated the idea of her having a man in her life. In a note of a phone conversation with Ms A in November 2011, an officer of the Department of Immigration and Citizenship wrote that Ms A had stated that she had merely shared a house with Mr Scanlan and had thrown him out after a rent dispute.  In a subsequent letter to the Department, Mr Scanlan stated that he believed that the reason Ms A disavowed the relationship with him was because of her concern that it might affect her Centrelink payments.  In these proceedings, when asked why Ms A might have characterised their relationship as one of friendship only, Mr Scanlan was unable to offer an explanation.

27. Mr Scanlan testified that if permitted to remain in Australia, he intends to find suitable accommodation for himself, Ms A and the child, who are currently living in motel accommodation. He conceded he has not discussed these plans with Ms A.

28. While it is plain that Ms A is fond of and thinks highly of Mr Scanlan, on the evidence presented I could not be satisfied that the relationship was, or is, a genuine marital-type relationship. While Mr Scanlan gave a plausible explanation for Ms A’s denial of the relationship, his unsupported claim is insufficient to support his characterisation of the relationship. However that relationship is characterised, I do not think it could reasonably be argued that the relationship between Mr Scanlan and the child constitutes a parental-type relationship — notwithstanding the broad range of relationships that potentially fit that description.  At best, it would appear that Mr Scanlan was an adult figure in the child’s life for a period of about six months and spent a great deal of time with her.

    Scope of Consideration 

29. The Direction provides (at cl 10.4(1)):

    Reflecting Australia’s obligations under the CROC [Convention on the Rights of the Child], if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.

30. The Direction provides that under Australian law, it is generally presumed that a child’s best interests will be best served if the child remains with their parents (cl 10.4.1(4)).

31. While there can be no argument that the maintenance of a parent–child relationship is central to the Convention (see for example, Articles 5 and 9), the Convention does not focus exclusively on the interests of the child vis-à-vis that relationship.  The range of interests the subject of the Convention is reflected in Article 3: 

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 

32. In my opinion, consistent with the Convention, this consideration is not confined to the subject child’s interests that arise out of, or relate to, a parental-type relationship. While broad in scope, this consideration nonetheless only applies if the child is “potentially affected” by the cancellation of the applicant’s visa. In this case the child has not had any contact with Mr Scanlan for the past six months and it is a matter of conjecture whether she will resume contact if he were to remain in Australia.  In the absence of any indication that Ms A is at least open to the possibility that she might resume contact with Mr Scanlan on his release, I do not think it could reasonably be argued that the child would be “potentially affected” by the cancellation of his visa.

33. It follows, that Mr Scanlan is not assisted by this consideration.

    OTHER CONSIDERATIONS

34. The Direction requires that a number of “other considerations” be taken into account where relevant (cl 11).

    Family and other ties

35. Mr Scanlan has no family or business ties in Australia. As stated, I am not satisfied that he was, or is, in a genuine marital type relationship with Ms A. 

36. Mr Scanlan claims that he has a network of friends in Australia but has not provided any particulars. Ms A is the only person he has been in contact with over the past six months while in custody.

37. He is not assisted by this consideration. 

    Mr Scanlan’s age and health

38. Mr Scanlan is 46 years of age.

39. A decade ago, Mr Scanlan was severely injured at work and as a result underwent a hip replacement and elbow surgery. Since that time, he has received the disability support pension. Mr Scanlan is not currently being treated for any physical condition arising out of that injury and there is no evidence to suggest that he is in need of treatment.

40. Dr Parmegiani believes there is no “persuasive evidence’ that Mr Scanlan has or is suffering from a chronic psychotic illness, such as schizophrenia or schizoaffective disorder. Dr Parmegiani thought the occasional psychotic episodes mentioned in Mr Scanlan’s medical records were most likely the result of recreational drug use.

41. While on the material presented it seems unlikely that Mr Scanlan suffers from a psychotic type illness, even if he did, treatment for that condition could be obtained in New Zealand, as could treatment for his alcohol abuse. Furthermore, as Mr Scanlan is not, and has not been, receiving any regular care for any psychiatric or psychological condition however described, his removal from Australia would not disrupt an established practitioner-patient relationship.

42. These considerations do not assist Mr Scanlan.

    Links to New Zealand

43. Mr Scanlan claims to have neither family nor friends in New Zealand. His mother died when he was an infant and he grew up in foster care after the death of his grandmother, in his early teens. This consideration weighs in his favour.

    Hardship likely to be suffered by Mr Scanlan 

1. While apparently there is little material difference between the accommodation and social services Mr Scanlon could expect to receive in New Zealand and Australia, if he were to return to New Zealand he is likely, in my opinion, to suffer some emotional hardship. The move would exclude the possibility of maintaining a relationship with Ms A, apparently his only friend and support. Given Mr Scanlan’s limited social capital and lack of ties to New Zealand, in my opinion this consideration weighs in his favour.

   Level of education and ability to advocate on own behalf

2. Dr Parmegiani is of the opinion that Mr Scanlan is capable of advocating on his own behalf. Despite literacy problems, in these proceedings, he presented, in my opinion, as capable of advocating on his own behalf.  

   Notification of cancellation

3. In December 2009, Mr Scanlan was formally notified that any further criminal conduct was likely to result in the cancellation of his visa.  He went on to reoffend.  This consideration weighs against him.

   FINDINGS AND CONCLUSIONS

4. In deciding whether to exercise the discretionary power to cancel Mr Scanlan’s visa, I must take into account the “primary” and “other” considerations and undertake a balancing exercise.  In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.

5. None of the primary considerations assist Mr Scanlan. While on the spectrum of seriousness, his criminal history could not be described as falling within the most serious category, given Mr Scanlan’s long history of offending, entrenched drinking problem and lack of support, in my opinion there is a real risk that he will reoffend.

6. The only consideration that weighs in Mr Scanlan’s favour is the emotional hardship he will no doubt suffer if he were return to New Zealand and his lack of current ties to that country. The Direction instructs that these considerations “generally ... should be given less weight than that given to primary considerations” (cl 11(2)).

7. Mr Scanlan is in a very unfortunate position. He is a person who for many years has been without family or friends and has been homeless for extended periods.  He has few if any ties to either Australia or New Zealand.  On his release from detention, he will be very much on his own, irrespective of whether he remains in Australia, or returns to New Zealand. If he were to remain in Australia, his position would be marginally better, because of the possibility that he might be able to look to Ms A for a measure of support. 

8. While I have considerable sympathy for Mr Scanlan’s position, in my opinion this is not an appropriate case where “other considerations” should be given greater weight than primary considerations. In reaching that conclusion, I have taken into account that apart from the emotional hardship he is likely to suffer if he were to return to New Zealand, the balance of the other considerations and all primary considerations weigh against, or do not assist him.

9. For these reasons I have decided that the preferable decision is to cancel Mr Scanlan’s visa. I recommend to the Minister that all efforts, including arrangements for temporary accommodation and referral to appropriate support services, be made to assist Mr Scanlan re-establish himself in New Zealand.

   ANNEXURE A

   Criminal history

Date of conviction	Offence	Sentence
30.10.1997	Breach of Bail	Convicted.  Fined $600.
	Wilful Exposure	Convicted.  Fined $100.
	Obscene Language in Public Place	Without Conviction.  Fined $75.
24.03.1998	Receiving	Convicted.  Fined $750. Fine Option Order to perform 100 hours of Unpaid Community Work.
12.03.1999	Behaves In Indecent Manner Obscene Language in Public Place Use Threatening Words	On all charges: Convicted.  Fined $240.
03.06.1999	Application for Fine Option Order For Fines Imposed 12.03.1999	Fine Option Order granted.  To perform 32 hours of Unpaid Community Work.
01.09.1999	Possess Utensils Or Pipes	Without Conviction.  Fined $280.
22.10.1999	Possessing Dangerous Drugs	Without Conviction.  Fined $320.
10.01.2000	Breach Of Fine Option Order Imposed 03.06.1999	Breach proven.  Breach Option Order revoked.
28.02.2000	Excluded Person Enter Or Remain In Casino	Convicted.  Fined $200.
11.03.2000	Possess Utensils Or Pipes	Convicted.  Fined $450.
10.08.2001	Possess Dangerous Drugs	Convicted & fined $560.
	Possession Of A Knife In A Public Place	Convicted & fined $250.
	Behave In A Disorderly Manner Use Insulting Words Obstruct Police Officer Use Threatening Words Contravene Direction Or Requirement	On all charges: convicted & fined $525.
	Possess Dangerous Drugs	Convicted.  Fined $560.
	Behave In A Disorderly Manner Use Insulting Words Obstruct Police Officer Use Threatening Words Contravene Direction Or Requirement	On all charges:  Convicted.  Fined $525.
	Possess A Knife In A Public Place	Convicted.  Fined $250.
12.02.2002	Behave In A Disorderly Manner	Convicted.  Fined $75.
29.11.2005	Common Assault	Convicted.  Fined $300.
20.03.2007	Use Offensive Language In/Near Public Place/School	Convicted.  Fined $200.
25.02.2008	Armed With Intent Commit To Indictable Offence Enter Building/Land With Intent To Commit Indictable Assault Officer In The Execution Of Duty	On each charge:  Convicted.  Released on entering Bond to be of Good Behaviour for 2 years.
	Behave In Offensive Manner In/Near Public Place/School	Convicted.  Fined $600.
	Commit An Act Of Cruelty Upon An Animal	Convicted.  Fined $400.
	Maliciously Destroy Or Damage Property	Convicted.  Fined $500.
05.06.2009	Armed With Intent To Commit Indictable Offence Assault Police Officer in The Execution Of Duty Enter Building/Land With Intent To Commit An Indictable Offence	On each charge:  Imprisonment for 6 months.  Sentence Suspended on entering Bond to be of Good Behaviour for 6 months.
17.06.2009	Common Assault	Imprisonment for 9 months.
	Intimidate Police Officer In Execution Of Duty (2 Charges)	On both charges:  Imprisonment for 9 months concurrent.
	Larceny Commit An Offence Having A Previous Conviction Destroy Or Damage Property	On all charges:  Imprisonment for 9 months concurrent.
	Common Assault (2 Charges)	On both charges:  Imprisonment for 9 months concurrent.
22.02.2011	Contravene Prohibition/Restriction In Apprehended Domestic Violence Order Common Assault	On each charge:  Imprisonment for 12 months.  Non-Parole period 2 months.

I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

..............................[sgd]..........................................

Associate to Senior Member A K Britton

Dated 5 April 2012

Date(s) of hearing	15 and 16 March 2012
Applicant	In person
Solicitors for the Respondent	Mr M Yin, Department of Immigration and Citizenship In-house Litigation