Stephens and Minister for Immigration and Citizenship
[2010] AATA 901
•16 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 901
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3615
General Administrative DIVISION ) Re Luther James Stephens Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date16 November 2010
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that the applicant’s visa should not be cancelled.
..................[sgd]............................
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 – Minister’s Direction No 41 applied – primary considerations – protection of the Australian community – risk that conduct may be repeated – mitigating factors – applicant’s young age – family ties – decision under review set aside
Migration Act 1958, ss 499, 501
Re Heyward & Minister for Immigration and Citizenship [2009] AATA 536
Puafisi & Minister for Immigration and Citizenship [2009] AATA 689
REASONS FOR DECISION
16 November 2010 Senior Member Jill Toohey
Background
1. Luther James Stephens was fourteen when he arrived in Australia with his mother and younger brother from New Zealand in October 2002. He holds a Special Category Visa by virtue of which he is allowed to remain in Australia indefinitely, subject to the provisions of the Migration Act 1958 (the Act).
2. Mr Stephens has not been to school since he arrived in Australia. He has worked for short periods in three different jobs. In July 2003, he was convicted of shoplifting. Since then, he has been convicted of numerous offences and has been subject to a bond, probation or prison for all but one month. He has been imprisoned for more than three of the past four years.
3. By letter dated 5 March 2010, the Minister for Immigration and Citizenship (the Minister) notified Mr Stephens that in he was considering cancelling his visa because his substantial criminal record meant that he did not pass the character test in s 501 of the Act.
4. On 17 August 2010, having considered Mr Stephens’ submissions, the Minister cancelled his visa. Mr Stephens seeks review of that decision.
5. Mr Stephens’ application for review was prepared by a solicitor from the Legal Aid Commission who apparently saw him in Villawood detention centre where he has been since 31 August 2010 when his recent prison sentence expired. The application stated his reasons for seeking review as follows:
I came to Australia with my family as a minor. I have no family in New Zealand and I’m frightened to go back. My mother is also mentally ill and needs to be cared for. It will kill her if I was deported. All my immediate and extended family are in Australia. I intend to undergo rehabilitation and will not re-offend.
6. The Commission subsequently advised the Tribunal that it was no longer instructed to appear for Mr Stephens. He appeared at a hearing before the Tribunal on 28 October 2010 with his mother and younger brother but without legal representation. The Minister was represented. The hearing proceeded with Mr Stephens, his mother and brother giving evidence. However, I became concerned at Mr Stephens’ capacity to represent himself adequately and adjourned the hearing to see whether representation could be arranged.
7. At a resumed hearing two weeks later, Ms Mahmud represented Mr Stephens pro bono. Mr Stephens and his mother gave further oral evidence, and closing submissions were made.
8. The Tribunal records its thanks to Ms Mahmud for assisting Mr Stephens in difficult circumstances with limited time available, and to Mr Bower, who appeared for the Minister.
Legislation and policy
9. The Minister may cancel a person’s visa if he reasonably suspects that the person does not pass the character test; and the person does not satisfy the Minister that she or he passes the character test: s 501 (2) of the Act.
10. A person is taken not to pass the character test if she or he has a substantial criminal record: s 501 (6). A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(7).
11. Mr Stephens does not pass the character test by reason of being convicted in the NSW District Court of assault occasioning actual bodily harm in company for which he was sentenced to 18 months imprisonment.
12. The discretion in s 501 (2) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (Direction 41) made by the Minister pursuant to s 499 of the Act and binding on the Tribunal: ss 499 (1) and (2a).
13. Direction 41 requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cls 5.1 (2) and 10.1.
14. To the extent they are relevant to the particular case, a decision-maker must take into account four primary considerations:
(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;
(d)any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child.
15. Factors relevant to assessing the level of risk of harm to the Australian community of a person’s continued stay include the seriousness and nature of the relevant conduct, and the risk that it may be repeated: cl 10.1(2).
16. Other considerations are set out in cl 11. They must be taken into account where relevant and, generally, should be given less weight than the primary considerations: cl 11(2). They include family ties and the nature and extent of any relationships; any links to the country to which the person would be removed; hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; and whether the person has been formally advised in the past that they risk deportation if their conduct continues.
The issue
17. The Minister contends that Mr Stephens’ continued stay in Australia presents an unacceptable risk of harm to the Australian community. For Mr Stephens it is contended that, despite his criminal record, relevant factors in Direction 41 weigh in his favour.
18. I have to decide whether the discretion not to cancel Mr Stephens’ visa should be exercised in his favour.
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence – the seriousness of the offending
19. Records of Mr Stephens’ convictions, sentences and appeals from the NSW Department of Corrective Services, and a bail report from the NSW police, are before the Tribunal. They show that Mr Stephens was first charged in July 2003 with shoplifting and was placed on probation. Thereafter, he appeared repeatedly in the Children’s Court charged with shoplifting; failing to hold a valid ticket for train travel; damaging property; being in possession of goods suspected of being stolen; possession of a prohibited drug; offensive language; entering enclosed land without a lawful excuse; being in a restricted area and not making a ticket available; and larceny.
20. A number of the Children’s Court charges were dealt with by way of dismissal without conviction or with a caution, small fines, bonds or probation. The Minister concedes that many of these offences were petty and at the lower end of the scale of seriousness. However, he says, over time, Mr Stephens’ offending has become more serious.
21. The records of Mr Stephens’ criminal history are not altogether easy to read because they have been prepared for various purposes, and it is not always clear whether there are separate offences, or several references to the same offence. The picture is complicated by Mr Stephens’ apparently repeated breaches of bail conditions. For the Minister it is acknowledged that the records are difficult to read.
22. The records show that Mr Stephens has been convicted of four assault offences, and stalking and intimidation with intent to cause fear of physical harm. He was placed on a six-month bond in July 2006 for the first assault on a police officer. He was imprisoned in March 2007 for the stalking offence (12 months), common assault (9 months) and shoplifting (3 months).
23. In November 2007, Mr Stephens was imprisoned for the second assault on a police officer (16 months) and resisting or hindering a police officer in the execution of his duty (3 months). In November 2009, was convicted of assault occasioning actual bodily harm in company for which he was sentenced to 18 months imprisonment. In January 2010, while in custody, he was sentenced to one month each for convictions for shoplifting and resisting or hindering police.
24. Direction 41 gives examples of offences and conduct that are considered serious; crimes of violence or the threat of violence are of special concern to the welfare and safety of the Australian community: cl 10.1.1. Serious criminal offences include assault and aggravated assault. A reference to possession of trafficable or commercial quantities of illicit drugs is clarified by a note stating that it is not intended to include offences related to personal use of illicit drugs less than a trafficable quantity although, clearly, that should not be read to mean such offences are to be disregarded.
25. A difficulty with assessing the seriousness of Mr Stephens’ offences, other than from the fact that he incurred convictions, is that little is known about many of them. There is no information before the Tribunal about the common assault charge. He denies assaulting police officers and says in relation to one that he was running away when the officer tripped him and hit him. Obviously the Court did not accept that explanation, because he was convicted but, otherwise, nothing is known. There is no evidence about the stalking and intimidation offence.
26. When questioned about his three shoplifting offences in 2003, Mr Stephens said in evidence that he was ‘just mucking around” with mates; they stole “choccy bars from Woolworths” and “stuff like that”. More recently he was charged with stealing stain remover from Woolworths. He claimed he could not remember why he stole it and denied it could be sniffed.
27. In relation to possession of goods suspected of being stolen, the records appear to show three offences in 2004, two in 2005 and one in 2007. Mr Stephens says each time he had DVDs, CDs or books on him but he denies any offence and says he had either bought the goods, or they belonged to a friend. On one occasion he had a ring on him which he claims belonged to his mother. He could not recall the larceny offence and nothing is known about it.
28. Mr Stephens has two convictions for possession of drugs and admits to possession of marijuana on those occasions. He admits using marijuana for “a few years”. Before the Tribunal, he initially denied more recent use but conceded in cross-examination that he was found several weeks ago in Villawood detention centre in possession of marijuana which he says he bought from another inmate.
29. The offence about which some detail is known is the assault occasioning actual bodily harm which occurred in September 2006, when Mr Stephens was 18. He was sentenced in November 2009. Sentencing remarks of Judge Hughes show that he pleaded guilty. The victim was at home when he heard a noise on his balcony; he came out see two men who ran off; he chased them down the street and grabbed one of the men who responded by punching him and then the other man also began punching him. A passing motorist, who stopped to see what was happening, heard one of the men say words to the effect “What the fuck do you think you are doing?”. Mr Stephens and the other man, whose identity is apparently not known, then ran off.
30. Judge Hughes noted that Mr Stephens had a “substantial record, including shoplifting and acts of violence, starting as a juvenile and indeed assaulting police officers.” He noted that, at the time of offences for which he was being sentenced, he was on two bonds, one for assaulting a police officer and resisting arrest, the other from the Children’s Court. He continued:
The circumstances, however, give the flavour that the offender was set upon by [the victim] … and responded by punching. Of course, [the victim] either was correct or, indeed, and this has not been established, he was mistaken as to the two men he saw on the balcony, but on those facts it appears he may have been mistaken, because the two men were yelling, “What the fuck do you think you are doing?” That is not necessarily as a result of a mistaken identity, but nevertheless the reactions of the two males … were violent and disproportionate. … [The victim] should not have grabbed a person, but on the other hand, the response by Mr Stephens was disproportionate and involved actual bodily harm.
He considered that Mr Stephens’ record did not allow leniency to be extended. He said that “because Mr Stephens gave no indication of remorse, I have no idea whether he is remorseful of not”. I accept the submission for Mr Stephens that this comment cannot be read as a positive finding that he was not remorseful, but that submission can only go so far because nor did he show remorse.
31. Taking into account Mr Stephens’ youth, Judge Hughes sentenced him to two years imprisonment, discounted by 25 per cent for his early guilty plea. The maximum sentence for the offence is seven years.
32. For Mr Stephens it is submitted that his most serious offence occurred when he was 18 and the sentencing remarks show that he was not the initial aggressor, and his oral evidence about the shoplifting and related offences show they were relatively minor. It is further submitted that the Tribunal should attach weight to his classification at John Morony Correctional Centre, where Mr Stephens was transferred in March 2010, as a “minimum security” inmate. I accept that these matters tend to mitigate the seriousness of his history.
33. A further matter is raised by the evidence. An “Immigration Report” prepared by the NSW Probation and Parole Service in August 2010 records that Mr Stephens had incurred no charges or offences while in custody but had recently shown a regression in his attitude to staff. It continues:
Mr Stephens has one current alert, in relation to an intellectual disability however this would appear to be unassessed at this time.
34. There is no evidence before the Tribunal from any qualified or professional about Mr Stephen’s intellectual capacity. However, his demeanour, and his responses to questions in evidence strongly suggest that, if not intellectually impaired, he is very borderline. He has a tendency to agree with statements put to him, and his mother, who gave evidence, described him as “a bit of a goofball” and “a stupid moron”. She says “he didn’t seem a very smart child” and, referring to his younger brother, Luke, she said “I’ve got one smart one and one stupid one … and maybe Luther has been stupid since he was a baby”.
35. I cannot reach any conclusion about Mr Stephens’ intellectual capacity but I think it doubtful that he plans or premeditates offences and, from his evidence, he seems often to be in the company of others when he offends. I accept that this mitigates the seriousness of his offending to some extent.
The risk of the conduct being repeated
36. A person’s previous general conduct and total criminal history are highly relevant to assessing any risk of re-offending: Particularly relevant are a recent history of convictions; evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation; and evidence that the person has breached judicial orders, including parole, bonds and other undertakings and conditions: cl 10.1.2.
37. In written submissions to the Minister, Mr Stephens said in relation to the 2006 assault that he was 18 at the time and knows he over-reacted; he thinks he has learned from his mistakes and his periods in prison and can promise that the likelihood of his returning to gaol is slight.
38. In oral evidence, Mr Stephens conceded that his record was “pretty bad” and said he would not re-offend but it must be said that it is difficult to see what will prevent that. He says he will live at home with his mother and younger brother but the evidence is that he was frequently away from home previously. It is difficult to get a clear picture of how much time he spent at home during the periods he was not in gaol. His mother says he spent about a year at home before he went to gaol most recently but she also says, and Mr Stephens agrees, that he often stayed at friends’ houses. I note that the Immigration Report refers to his “history of transient living and non stable accommodation”.
39. Mrs Stephens says she is willing to have her son live at home and has kept his bedroom for him. She has a partner of eight months who lives at the home and who she says will accept her son. She believes they will get on because Mr Stephens is basically “a good kid”. When asked what she would do if her partner and Mr Stephens did not get on, she said her son would walk out the door.
40. Mr Stephens has had three jobs in the past, none of which he seems to have held for more than a short time. He says about one job that he left because here was no work but he has not explained why he left the others. He does not appear to have any firm plans for employment and says his mother will get him a job. He says things are different this time because he cannot “just sit around” and will have to work. I note that the Immigration Report records that, when asked about his plans after release, he said he would “stay at home and play video games”
41. Mrs Stephens is confident she can get him a job at a food processing plant and is willing to work there with him to keep him on track. Alternatively she believes he could get a job as a cleaner for the local council because her partner and another friend could put in a good word for him. Both possibilities seem tenuous, at best, and it seems clear that Mr Stephens will be almost entirely reliant on his mother’s, rather than his own, devices to find employment.
42. Mr Stephens denies any problem with drugs or alcohol and there is no evidence of any serious problem. The bail record shows that, when convicted of shoplifting in May 2006, he was placed on a bond and required to obey “all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the [local] probation office within 7 days”. There is no evidence that Mr Stephens was in fact given any such direction and, in any event, he did not attend any form of rehabilitation.
43. In November 2006, Mr Stephens was sentenced to a total of 12 months imprisonment, with a non-parole period of three months, for common assault and the stalking offence. A condition of his release was that, “subject to supervision immediately upon release”, he was to “enter and remain into a fulltime (live in) residential (alcohol/drugs) rehabilitation centre” with entry to be arranged prior to his release by the drug and alcohol worker at the institution where he was located. Mr Stephens gave evidence that he recalled this condition being imposed but says he did not attend rehabilitation because “they just let me out on parole”. There is no evidence that arrangements were in fact made and nothing further is known about this.
44. In June 2007, Mr Stephens was placed on a two-year bond for shoplifting and again required to obey “all reasonable directions for counselling, educational development or drug and alcohol rehabilitation”. There is no evidence that he was in fact given any such direction. The same condition was imposed when he was sentenced in July 2008 for assault occasion actual bodily harm in company. That is the matter for which he was in gaol before being transferred to Villawood pending the outcome of these proceedings.
45. The Immigration Report states that alcohol and drug staff at the John Morony Correctional Centre advise that Mr Stephens had “not availed himself of this service at this gaol”; staff considered that, due to his “short sentence and current demand for alcohol and drug services he would be unable to complete any programs whist in custody, however, this was attributed in part to his assertion that he has no alcohol issues to address and does not see cannabis as a problem. It was therefore considered that [he] would be would be unlikely to benefit from drug and alcohol targeted programs”. The Report concludes that he had shown a “varied response to imprisonment and has accessed limited services in order to improve his chances of rehabilitation” even though the program was not available to him, it appeared that his “attitude in relation to his use of alcohol and illicit substances deemed him as being unsuitable for programs a this time”.
46. A difficulty with the Immigration Report is that there are no details about Mr Stephen’s “attitude” to his use of drugs and alcohol or what that use entails. The report predates his transfer to Villawood and so apparently cannot refer to his being found in possession of cannabis there. Nevertheless, to the extent that he requires rehabilitation for drug and alcohol problems, it tends to confirm the impression Mr Stephens gave during his evidence that, if not resistant to any rehabilitation, he lacks any apparent motivation.
47. There are no independent assessments, pre-sentence reports or other independent evidence. The only evidence is the Immigration Report and the sentencing remarks of Judge Hughes.
48. Mr Stephens’ record shows that he breached bail on seven occasions and failed to appear in court of four occasions. Judge Hughes commented when sentencing him that “he has had enough chances with bonds and things”. A number of his offences were committed while subject to some form of judicial order.
49. There is no doubt that Mr Stephen’s record of offending is serious, and the seriousness of his offending has increased in time. He appears to be undeterred so far by any sentence. However, as the Minister acknowledges, many of his convictions are for offences at the lower end of the scale.
50. What marks his criminal history overall is the repetition of offences and the repeated offending while subject to some form of judicial order, rather than the seriousness of the offences themselves. That is not to downplay the undoubted seriousness of the assault charges, in particular the most recent.
51. Against Mr Stephens is that his plans for the future are so tenuous, and it is difficult to see what will change his conduct in the future. It is submitted for him that the difference this time is that he is genuinely fearful of deportation; further, that he has matured and shown signs of change. If he has in fact matured and resolved not to re-offend, it is difficult to detect from his evidence. It is this consideration that weighs most heavily against him. However, judging from his overall record so far, I think it probable, if he does re-offend, that his offences will be less serious rather than more so.
52. Taking into account all of the evidence that goes to the protection of the Australian community, I find that it weighs in favour of cancelling Mr Stephens’ visa.
Whether the person was a minor when they began living in Australia
53. By way of general guidance, Direction 41 provides that in some circumstances, it maybe appropriate for the Australian community to accept more risk whether the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia: cl 5.
54. Clause 10.2 provides, in similar terms, that, if a person was a minor when they began living in Australia and spent their formative years here, thereby increasing the likelihood of establishing greater ties and linkages with the Australian community, this should be given favourable consideration.
55. Mr Stephens has lived in Australia since he was 14 and spent some of his formative years here. He has not returned to New Zealand. The Minister acknowledges that this consideration may weigh in his favour.
56. In my view, this consideration weighs in Mr Stephens’ favour, less so than if he had come as a very young child, but that is balanced by the fact that his only real ties appear to be here.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
57. Direction 41 recognises that the longer a person has been in Australia, the more likely they are to have significant ties to the Australian community and, reflecting this, provides that more favourable consideration is to be given the longer a person has ordinarily been resident before engaging in criminal activity or activity that bears negatively on their character. It cites an example of ten years residence prior to engaging in criminal activity as an important consideration: cl 10.3.
58. Mr Stephens had been in Australia only nine months before he committed his first offence. I accept his submission that, rather than weighing positively against him, it is more appropriate to find that nothing about this factor weighs in his favour. This approach is consistent with the emphasis in cl 10.3 on likely significant ties to the Australian community and has been applied by the Tribunal in other matters: see, for example, Re Heyward & Minister for Immigration and Citizenship [2009] AATA 536; Puafisi & Minister for Immigration and Citizenship [2009] AATA 689.
59. I find this consideration weighs neither for nor against Mr Stephens.
Any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child
60. For Mr Stephens it is conceded there are no international obligations to be considered in his case. However, the Tribunal is asked to take into account that his younger brother, who was only 18 when he was last gaoled, is still only 19 and strongly attached to Mr Stephens. The possible effect of Mr Stephens’ removal on his brother is considered below.
Family ties, the nature and extent of any relationships; any links to the country to which the person would be removed; hardship
61. For Mr Stephens it is submitted that his family ties in Australia, and his lack of ties to New Zealand, weigh heavily in his favour. Against this, the Minister contends that his ties to his family here are not strong and little would change whether he was here or in New Zealand.
62. Mrs Stephens gave evidence that she and her sons are very close but she has not visited her son since he has been in gaol this time and she has telephoned him only once or twice. She gave evidence that she did not visit him because sometimes he makes her angry when he “talks like a moron” and she might start yelling, so she thought it best for him to keep away. She says she is trying to curb her “snapping” at him and says he does not argue with her. She thinks he will be better this time; she will try to get him a job and thinks he’ll enjoy the work. She appears to be committed to helping him.
63. A letter in support of Mr Stephens written by a friend, Natasha Samuela, says Mrs Stephens has a mental illness and needs care, and Luke Stephens cares for her. Mr Stephens refers to his mother’s mental illness in his application. Mrs Stephens denies a mental illness but gave evidence that she has suffered from depression and anxiety and “small drinking problems”. She thinks the depression might date from post-pregnancy. Asked how it would affect her if Mr Stephens were deported, Mrs Stephens said she might start drinking again and become a “workaholic”.
64. Mr Stephens says in his application that his mother needs to be cared for and it would kill her mother if he were not here. Given how little time he has spent at home, whether due to imprisonment or because he was staying somewhere else, it is difficult to see that Mr Stephens’ removal would make a great deal of difference to his mother’s care but I accept that it would distress her.
65. There is evidence that Mr Stephens’ younger brother is attached to him. In a letter of support he says Mr Stephens had a very difficult childhood and asks for a chance for the family to help and support him. He has attended both days of the Tribunal hearing with his mother and gave oral evidence. The Immigration Report shows that his brother is the only person to have visited Mr Stephens since he was gaoled in November 2009 and he supports him financially by depositing money into his prison account each week. Mrs Stephens gave evidence that they both contribute and Mr Stephens’ brother deposits the money.
66. It is not entirely clear what other family there is in Australia. There do not appear to be any relatives in Australia, although Mr Stephens says he has an uncle and aunt, and cousins whom he sees when he is not in gaol. Mrs Stephens gave evidence that there is no family here and that she and her sons have pretty much kept to themselves.
67. Mrs Stephens gave evidence that she separated from Mr Stephens’ father when he was very young. She says there was violence in the relationship and after one incident, she went to court, after which she wanted nothing to do with him and they never reconciled. There are no family or relatives in New Zealand.
68. I accept that Mr Stephens has no one to whom he could return in New Zealand and, for all practical purposes, no one who would support him. It is true, as the Minister points out, that he would have access to all of the services available to any New Zealand citizen but he appears to be almost entirely dependent on his mother; he appears barely self-reliant and it is difficult to see how he would manage on his own.
69. The Minister acknowledges that Mr Stephens’ departure would cause some disruption and sadness to his family and that this consideration weighs against cancelling his visa. He acknowledges that Mr Stephens and his family would face some hardship if he were removed and this consideration weighs against cancellation as does Mr Stephen’s lack of links to New Zealand .
70. Taking into account that Mr Stephens is still relatively young, that his only family and friends are here and it would cause his mother and brother considerable distress if he had to leave, that he has no family in New Zealand and very limited personal resources on which to draw if returned there, I find that this consideration weighs strongly against cancellation of his visa.
Whether the person has been formally advised in the past about the possibility of a s 501 decision
71. On 19 March 2008, a delegate of the Minister sent Mr Stephens a letter, noting his criminal record and advising him about the operation of s 501 of the Act. The letter advised that no consideration was being given to cancelling his visa but warned that any further criminal convictions or any other conduct that came within the scope of s 501 (6) could result in cancellation of his visa, his removal from Australia and could lead to a bar on his re-entry. Since then, he has been arrested for shoplifting and resisting arrest.
72. Mr Stephens gave evidence that he recalled receiving this letter and understood that it meant “they’re trying to deport me”. I am not sure how much of its significance he really did appreciate. In response to questioning, he said he did not show the letter to anyone or discuss it with anyone. Mrs Stephens gave evidence that he did not tell her about the letter.
73. Given his apparently limited intelligence, I think the warning in the letter of 19 March 2008 should weigh only marginally against Mr Stephens.
Balance of considerations
74. This decision has been difficult. Against Mr Stephens is that he has no real plans for after his release. I accept that he does not wish to be deported but he has no plans for how to stay out of trouble. Any chance of employment depends on his mother and she cannot do much more than put in a good word for him and try to support him. His chances of stable accommodation appear tenuous. Everything points to a risk that he will re-offend.
75. However, it weighs in Mr Stephens’ favour that he has lived in Australia since he was 14 and it is his home. His only family are here. His criminal history includes serious offences but, mostly, they are relatively minor. He is young. Although he has spent most of the past four years in gaol, his most serious offence was committed just over four years ago. Some consideration should be given to his apparently limited intelligence.
76. The factors weighing in favour of, and against, cancellation are finely balanced. However, I am satisfied that, while there is a risk that Mr Stephens’ will re-offend, the risk of serious harm to the Australian community from his conduct is not unacceptable. I am satisfied that the discretion not to cancel his visa should be exercised in his favour.
I certify that the 76 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member TooheySigned: .............[sgd]...............................................................
Diana Weston AssociateDate of Hearing 28 October 2010 and 11 November 2010
Date of Decision 16 November 2010
Counsel for the Applicant Ms S Mahmud
Solicitor for the Respondent: Mr R Bower, Clayton Utz
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