Stewart and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1234
•22 November 2004
CATCHWORDS – IMMIGRATION – visa – general conduct – criminal conduct – failure to pass character test – whether discretion should be exercised – decision affirmed
Migration Act 1958 ss. 5, 20, 31, 32, 499, 501 and 501G
Migration Regulations 1994 r. 5.15A and 444.2; Schedule 2
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2004] AATA 1234
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/1027
GENERAL ADMINISTRATIVE DIVISION )
Re PERE STEWART
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 22 November 2004
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 28 July 2004.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 7 September 2004, the applicant, Mr Pere Stewart, applied for review of a decision made by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 28 July 2004. The Minister had decided to cancel Mr Stewart’s Special Category Class TY subclass 444 visa (“SCCTY444 visa”) on the basis that he does not pass the character test under s. 501 of the Migration Act 1958 (“Act”). I have also decided that Mr Stewart does not pass the character test and that his visa should be cancelled. Even if he did not, the discretion should not be exercised in his favour.
At the hearing, Mr Stewart represented himself and the Minister was represented by his solicitor, Mr Webb. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as to written statements by Mr Stewart, his father, Mr James Stewart, his stepmother, Mrs Shirley Harrison, and his sister, Ms Fleur Stewart, a psychological report by Mr Ian A Joblin, Forensic Psychologist, a letter from Mr Michael Wayne Tata of Total Maintenance Engineering, three ISIS Incident Reports regarding incidents on 28 and 29 August 2004 and 5 November 2004 at the Maribyrnong Detention Centre (“Maribyrnong”), and a note of a telephone conversation between Mr Webb and Mr Stewart’s solicitor in pending criminal matters. Mr Stewart gave evidence in support of his application for review as did Mr James Stewart, Mrs Harrison and Ms Stewart. No evidence was given in support of the Minister’s case.
ISSUES
The first issue is whether Mr Stewart passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(2) should be exercised to grant him the visa.
BACKGROUND
I find on the basis of the evidence that Mr Stewart was born at Kawa Kawa in New Zealand on 19 October 1983. He has an older sister, Fleur Stewart, who is 23 years of age, and two younger brothers, Norman Stewart and Jeremiah Stewart. Mr Stewart does not have a girlfriend or any children.
Mr Stewart’s mother lives with their stepfather at Opononi and has done for the past five years. On 9 September 2000, Mr Stewart left his mother’s home and came to Australia to live with his father and his step mother, Mrs Harrison. Mr James Stewart and Mrs Harrison had come to Australia on 27 August 2000. His brother, Norman, who is approximately 17 years of age, also lives with his father. His sister, who came to Australia earlier in 2000, lives with her fiancée. Jeremiah, who is approximately 14 years of age, continues to live with his mother in New Zealand.
Mr Stewart’s uncle, Mr Reihana Stewart, and Mrs Stewart’s aunt, Mrs Heeni Stewart, live in Australia. Members of his mother’s family live in Adelaide and Perth and he has many cousins living in Australia.
Mr Stewart has been convicted of a number of offences between 6 March 2002 and 12 September 2003 in the Dandenong Magistrates’ Court. Mr Stewart’s convictions are:
| DATE | CHARGE | RESULT |
| 6 March 2002 | Theft Procure hire of motor vehicle by fraud | fined aggregate of $300 fined an aggregate of $300 |
| 5 June 2002 | Without authority/excuse, enter a private place | fined $250 |
| 24 July 2002 | Intentionally cause injury Behave in offensive manner in public place | Community Based Order (“CBO”) for 3 months commencing 24 July 2002 to perform 80 hours of unpaid community work over 3 months. CBO in same terms as above. |
| 28 October 2002 | Theft from shop (shopsteal) Recklessly cause injury Theft from shop (shopsteal) Intentionally destroy property Failure to comply with CBO (relates to CBO of 24 July 2002) | CBO for 12 months commencing 30 October 2002 to perform 100 hours unpaid community work over 12 months; to submit to testing for alcohol/drug use; to undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed; to complete anger management course; and be under supervision of Community Corrections Officer. CBO in same terms as above CBO in same terms as above CBO in same terms as above Fined $300 |
| 14 March 2003 | Theft of a motor vehicle Theft from shop (shopsteal) Failure to comply with CBO: relates to CBO of 28 October 2002 | 3 months’ imprisonment (concurrent) wholly suspended for 18 months; disqualified from driving for 6 months from 14 March 2003 Fined an aggregate of $800 with $55 costs. Proven |
| 12 September 2003 | Theft from shop (shopsteal) Recklessly cause serious injury Assault in company Theft from shop (shopsteal) Robbery Breach of CBO (relates to CBO of 14 March 2003) Breach of CBO (relates to second CBO of 14 March 2003) | 1 month’s imprisonment (concurrent) 7 months’ imprisonment (concurrent). 7 months’ imprisonment (concurrent). 1 month’s imprisonment (concurrent) on each charge. 7 months’ imprisonment on each charge (concurrent). Suspended sentence of 5 months’ imprisonment wholly restored. Suspended sentence of 3 months wholly restored. |
| 24 May 2004 | Robbery Recklessly cause injury | Aggregate 6 months’ imprisonment. Concurrent. Aggregate 6 months’ imprisonment to be served as above. |
Mr Stewart was released from prison on 5 December 2003. His parole conditions required him to observe a curfew between 7.00pm and 7.00am. He was not permitted to use public transport.
On 15 March 2004, an officer of the Department of Immigration and Multicultural and Aboriginal Affairs (“Department”) wrote to Mr Stewart advising him that the Minister was considering whether to cancel his visa under s. 501(2). He was invited to make comments on each of the topics in the Minister’s Direction No. 21 (see paragraph 70 and following).
THE EVIDENCE
Life in New Zealand
Mr Stewart said that he completed Form 3 at school in New Zealand. He did not do “too well” at school but was not sure why that was so. When asked if he had any trouble with subjects such as reading and arithmetic, he replied “not really”. He did not always attend school because he did not have a father who made him go. He would walk out of school and did not have to answer to anyone when he got home. The rest of the day would be spent at the shops with a couple of other school waggers. He hid from his mother’s friends until school finished and then went home. During those hours, he was “pretty scared”, smoked cigarettes and otherwise did not know what he did.
Mr Stewart said that he was brought up to enjoy free speech and would say what he felt. He told the teachers at school what he felt. Sometimes that was a problem because it could be a bad or a sad feeling. He was “kicked out of school” a couple of times. That came about because he was young and everything had built up. Other children at school had a father and that was “pretty much a big issue”.
Ms Fleur Stewart said that she had been the one to whom her brother came when they were growing up. That was because their mother was at work. Ms Fleur Stewart said that her brother had problems with the teachers at school because of how he looks and what he says. Eventually, he was kicked out of school. She had completed Year 13 and was then studying a course but she home-schooled him for his Year 10 studies at the same time.
Mr Stewart said that he had many friends in New Zealand and a wider family too. As he left when he was 16 or 17 years of age, he did not know if his friends remained his friends.
Mr Stewart said that he did not have any trouble with the law in New Zealand.
Mr Stewart’s move to Australia
Mr Stewart said that he saw his father when his father visited New Zealand on holiday. His father suggested that he move to Australia as it has a lot of opportunities but it was his own idea to come. Mr Stewart was met by his father and his cousins when he arrived in Australia. He lived at first with his father and his family while he looked for a job. His uncles were involved in trucking and he was given work experience with them. He did that on and off over time. When asked if he applied for a truck licence, Mr Stewart replied that he did not like working with the family; he left it all behind; and just left.
Mr Stewart said that he started to meet New Zealand kids about his own age. He was mingling a bit more and wanted to see a bit of the rest of Australia. His stuff was at home but he was never really at home. Instead, he was staying on the streets or anywhere, he said, with countrymen of his own. When asked why he had done that, Mr Stewart replied that it did not just happen over night but in stages. He talked about starting a job but he was young and just wanted to have fun. Friends would call and he would jump at it.
Over the time that he has been in Australia, Mr Stewart has worked for a month or so with TNT as a labourer. He has been through a lot of jobs, he said, and was not sure why he left them. Mr Stewart’s pattern was that he would go back with his friends, get into trouble, go home and stay a couple of nights before starting again. Since he has been in Australia, Mr Stewart said he has had four or five jobs. Thirteen months was the longest he ever held a job. That was in a mulch yard and he liked the job. His father had been working there doing trucking. Mr Stewart was given the job after he had been released from a police cell and he had tried to start again. He worked in the yard but father and son went to work together. The mulch yard closed at the beginning of 2003 and his job came to an end. It had been good to be busy everyday and he had not had time for his friends. After the mulch yard closed, Mr Stewart said that he had held part time jobs or been at home. He was not sure if he was seeing his friends at this time.
In cross-examination, the discrepancy between his evidence to the effect that he had been at the mulch yard throughout 2003 and Mr Joblin’s report was brought to Mr Stewart’s attention. Mr Joblin wrote a report based on his interview of Mr Stewart on 28 August 2003. At that time, he wrote that “Mr Stewart, however, acknowledged that for the last year or so he has had difficulties and has not been employed.” (Exhibit B). Mrs Harrison explained that her stepson had mixed up his jobs and that he had been employed by Pura Milk during 2002. His father said that he and his son had worked at Mulchmaster together until his son was injured and relocated to another position.
Before he was detained at Maribyrnong, Mr Stewart said that he had only seen his friends once or twice as he was tied up with his Intensive Corrections Order (“ICO”) six days a week. He had been doing that for the previous two or three months. As part of his ICO, he had been attending night classes and performing community work six days each week. The classes included problem solving and anger management classes but he only attended four classes. Mr Stewart’s response to being asked what he thought of the classes was that he did not want to be there. They started at 5.00pm and went on. He did not really like them. Apart from their starting time, he did not like the fact that there were a lot of big people in the classes. They took up the teacher’s time and the class was a waste of time. When asked if he got any assistance out of the classes, he replied that he did; when his name was ticked off.
Mr Stewart said that he attended four or five alcohol classes. They talked about alcohol consumption. Those classes worked well because they were with someone who knew about the problem and made him think a bit. The problem is alcohol and friends, he said. There is too much alcohol. Dandenong, where he lives, is a very easy community to get into fights. That is because of the type of people who live there. It is not easy to stay away from those sorts of people. He could just be walking down the street and maybe look at someone the wrong way. That person will have a go at you. When he is not drinking, he seems to leave things alone a bit more but when he is drinking, he will let one or two get away but not four. His problem is with drinking. Everyday he was drinking and stealing bottles of drink. He had nothing else to do but drink with his friends. His drinking started when he first went onto the streets.
Returning to the alcohol classes, Mr Stewart said that he was asked how much he drank but they were not giving him any suggestions or telling him what to do. The classes were not helping much; people just have a job they have to do and they had not rehabilitated him much. Mr Stewart thought, though, that his habits were slowly changing. Sometimes he is not drinking at all. When he is drinking, he is not drinking much and it is not a problem. It would be a problem to his mind if he were drinking two or three days each week.
Mr Stewart said that he had tried some drugs but mainly just ecstasy and marijuana. Later in cross-examination, he acknowledged that he had also abused prescription drugs to some extent. Mr Stewart said that he started using drugs when he went on the streets and would try anything and everything. Mr Stewart said that he did not care about anything and would steal food and alcohol. He used ecstasy anytime he felt like it but would never buy it as he had a lot of friends. His family did not know about that as he had not opened up to them about that. When asked whether he was still using ecstasy, Mr Stewart said that he was not; he was in the detention centre. As for marijuana, he was “not really a big fan of it” and had not used it recently. In response to a question whether he had been with anyone else who had been using it recently, Mr Stewart again replied that he had been in the detention centre.
Offences committed on 20 April 2001
The Summary of Charges sheet prepared by Senior Constable Katrina Robertson noted that Mr Stewart had been abusive/insulting and unco-operative. In cross-examination, Mr Stewart said that he agreed with the way in which the incident had been set out in that summary. It reads:
“At about 11pm on the 20th of April, 2001 the victim in the matter was riding his bicycle in a westerly direction along Robinson Street, Dandenong. Once outside Centreline he stopped for a brief moment to pick up his cigarette lighter which he had dropped on the ground. At this stage the defendant approached the victim from behind & asked him for a cigarette the victim stated that it was his last one.
After this brief conversation the defendant who was still standing behind the victim put his arm around the victims neck & grabbed hold of the front of the victims jacket & pulled him to the ground. Once the victim was on the ground the defendant started to punch & kick him around the head & torso. The victim kept saying ‘stop hitting’.
The victim managed to get off the ground. The victims head was sore, he felt the back of his head when he bought his hand back down it was covered in blood. The victim saw the defendant run away, he (the victim) pursued the defendant, but was unable to locate him. He gave no person permission to assault him.
The victim attended at the Dandenong Police Station to report that matter. He was transported to the Dandenong Hospital via ambulance where he received medical attention.
Police obtained a description of the defendant. Police then patrolled the Robinson Street area & located the defendant sitting outside 41 Robinson Street. While police were speaking the defendant he spat at one of the female officers. The defendant was conveyed to the Dandenong Police Station where he was interviewed on tape. He denied the allegations & was released on summons to appear at the Dandenong Magistrates Court.
…
Reasons
1)Recklessly Cause Injury ‘I just told you I didn’t hit anybody’
2)Unlawful Assault ‘I’ve told you twice now’
3)Offensive Behaviour ‘It wasn’t even a spit’”
(G documents, pages 32 and 33)
Convictions on 28 October 2002
It would seem that there is no Summary of Charges sheet relating to these convictions. At the interview with an officer of the Department on 2 April 2004 (“interview”), Mr Stewart said:
“Pleaded guilty – he has always admitted to offences (when in court) that he had done.” (G documents, page 37)
Offences committed on 7 December 2002
The Summary of Charges sheet prepared by Senior Constable S.A. Baldock noted that Mr Stewart had been abusive/insulting and unco-operative. He had made no admissions but he was to appear at the Dandenong Magistrates’ Court. His brother, Mr Norman Stewart, and Mr Henry Toatoaley, who were charged from the same set of circumstances, were to appear in the Dandenong Children’s Court on 24 February 2003. The Summary of Charges sheet reads:
“ On Saturday the 7th of December 2002, the defendant was sitting on the footpath of Clayton Road in the Clayton Shopping Centre, with a co-defendant and a third male.
At approximately 1:30 a.m., the victim and his stepson walked past the defendant, the co defendant, Norman STEWART and the third male. Norman STEWART asked the victim for a cigarette, the victim refused and kept walking. The defendant and the Norman STEWART then began following the victim and his stepson, Norman STEWART began acting very aggressively towards them as they walked. The victim confronted Norman STEWART several times as they walked south along Clayton Road, but he continued to harass and act aggressively towards the victim and his stepson. As the victim turned to walk away from the defendant and Norman STEWART, the defendant hit him over the top of the head with a small portable stereo that he was carrying. Norman STEWART then began to assault the victim’s stepson, a struggle developed between Norman STEWART, the victim and the victim’s stepson.
As the struggle was occurring Police drove past and the victim flagged them down. Police spoke to the defendant and co defendant and an ambulance was called for the victim who had a large cut to the top of his head. The victim was transported to the Monash Medical Centre, where seven stitches were inserted into the cut on top of his head. Police were required to convey Norman STEWART to the Monash Medical Centre, where he also received medical treatment. The defendant and the third male left the scene. The victim did not give anyone permission to assault him on that night.
…
Reasons-
Recklessly Cause Serious Injury – ‘Never caused reckless injury.’
Intentionally Cause Injury – ‘I never did any of that bullshit.’
Recklessly Cause Injury – ‘I never done nothing, it wasn’t me.’
Assault with a Weapon – ‘Don’t look at me man.’
Assault in Company – ‘What you writing this bullshit for.’
Unlawful Assault – Nil Given
…”(G documents, pages 28 and 29)
At the interview, Mr Stewart is recorded as saying of this incident:
“… Report written in police’s best interests. He had not seen his brother ask for a cigarette – it was raining and Norman was behind him. He turned and saw the victim – who was about 7’6” tall – holding his small brother (immobile) by the hair – he tried to calm the situation down. Norman → hospital” (G documents, page 37)
In his psychological assessment, Mr Joblin said of this incident:
“… While I have noted the summary, Mr Stewart outlined some provoking circumstances in some of the offences such as the offence of the 7th of December 2002. Mr Stewart reported that the victim in that matter and Mr Stewart’s brother had had some difficulties and he went to support his brother. Thus Mr Stewart was emphatic that while he was drunk, he did not initiate matters at that time.” (Exhibit B, page 3)
When asked about this incident in cross-examination, Mr Stewart asked Mr Webb about his good points. He accused Mr Webb of making it sound as if he was very bad when he skipped from sentence to sentence in the Summary of Charges sheet. His family was there listening to Mr Webb do that. He was helping his brother out and they did not provoke anyone. It is not so much intolerance as a feeling about Dandenong. There are a lot of junkies.
Offences committed on 21 December 2002
The summary of these offences appears on the same charge sheet as those for 7 December 2002. It reads:
“ On Saturday the 21st of December 2002, at approximately 9:45pm., the defendant and two co-defendant’s [sic], Douglas NOOKURA and Henry TOATOALEY attended the Fuel Zone Service Station at the intersection of Clayton Road and North Road in Clayton.
The defendant, NOOKURA and TOATOALEY entered the store and began heating up pies, sausage rolls and rolls in the store microwave oven. NOOKURA and TOATOALEY left the store, the defendant then attempted to leave the store with the food without paying for it. The console operator became suspicious of the defendant and hit a duress alarm button before confronting the defendant as he attempted to leave the store with the food items. The defendant offered to pay $2 for the food when he was confronted by the console operator, but dropped the food and attempted to leave the store when the console operator told him it was not enough.
At the time the console operator had hit the duress alarm button he had also locked the front door of the Service Station. When the defendant found the doors locked he forced the doors off their rails to get out of the service station, causing approximately $250 damage to the doors.
All the food heated by the defendant, NOOKURA and TOATOALEY was ruined and could not be resold by the Service Station, the value of the food was $27.65. No one was given permission to heat or remove the food from the store without paying for it.
Police arrived at the Service Station shortly after and followed the defendant, NOOKURA and TOATOALEY to an address behind the Service Station, where the defendant was arrested. The defendant was conveyed to the Oakleigh Police Station where a tape recorded interview was conducted in relation to the incidents on the 7th and 21st of December 2002. The defendant was very aggressive and verbally aggressive during the interview, he stated that he had not been involved in the assault on the 7th of December 2002 and had not taken anything from the Fuel Zone Service Station.
Reasons-
…
Theft – ‘I wasn’t trying.’
Criminal Damage – ‘I never damaged the doors.’” (G documents, pages 28‑29)
Mr Joblin reported:
“In relation to the offences of the 21st of December 2002 at the service station, Mr Stewart reported that he had attended a barbecue with his friends near the service station. He had decided to leave the barbecue and get something to eat at the service station. He was there when his friends entered and displayed some extraordinary delinquent behaviour in placing an amount of food in the microwave there. He emphasised, however, that his original intention was to get a pie that he could have paid for at the time. Mr Stewart acknowledged the stupidity of the offence of the 8th of April 2003 and, indeed, reported a degree of shame over that as in his opinion it represented a somewhat pathetic criminal act.” (Exhibit B, page 3)
In cross-examination, Mr Stewart said that he took responsibility for what happened but that the Summary of Charges sheet did not set out the full story.
Offence committed on 19 January 2003
Mr Joblin referred to an offence committed on 19 January 2003. He reported that “… Mr Stewart had been drinking. Again it seems that there was a large involvement of alcohol in the offending.” (Exhibit B, page 3) In cross-examination, Mr Stewart said that he took responsibility for his actions but that others did not know the full story.
Convictions on 14 March 2003
At the interview, Mr Stewart is recorded as saying:
“All finished. Has done time for. Wants to get away from that part of his life.” (G documents, page 37)
Offences committed on 17 April 2003
The Summary of Charges Sheet prepared by Detective Senior Constable Adam Henry noted Mr Stewart as uncooperative. He summarised the offences as follows:
“In the early hours of Sunday the 19th of January 2003, the victim Nicholas PANAGOPOULOS caught the last train home to Noble Park. He boarded this train at Caulfield and sat in the front carriage, as this was the only carriage used at that time of night. The victim fell asleep on the train. He awoke approximately 15 minutes later two (sic) find the defendant (Pere STEWART) and his co-defendant (Douglas NOOKURA) seated in front of him. The victim knew the defendant and the co-defendant. He knows the defendant as “Peri” and co-defendant as “Little Doug”. Both the defendant and the co-defendant were alcohol affected and were drinking from a bottle of “Jack Daniel’s”. The defendant’s then had a short discussion with the victim. Without provocation, the co-defendant then reached over and grabbed the victim by the throat. He asked the victim for money. Out of fear, the victim gave the defendant’s approximately $5.00 in loose change. After receiving the money, the co-defendant let go of the victim’s throat. The defendant’s and the victim all stayed on the train until Noble Park.
The victim got off the train first. The defendant’s then got off. They walked behind the victim and followed him to a nearby Coles Supermarket. Whilst walking behind the victim the defendant’s asked the victim where he lived and if he would buy them a pizza. This made the victim feel intimidated. Once they reached the supermarket, the victim sat on a seat outside the front entrance. The defendant sat next to the victim while the co-defendant stood in front of the victim. All of a sudden and without provocation, both the defendant and the co-defendant began punching the victim. The victim was hit in the head and face. The punches caused the victim to loss (sic) consciousness and collapse. He awoke a short time later to find that both defendants had decamped with his wallet and mobile phone. The defendant’s stole approximately $320.00 worth of property from the victim.
As a result of this assault, the victim was conveyed by the ambulance to the Dandenong Hospital where his injuries were treated. The victim received cuts, abrasions, bruising and swelling to his head, face and upper body.
On Thursday the 17th of April 2003, police attended the Melbourne Custody Centre and interviewed the defendant in relation to this matter. The defendant made a “No Comment” interview and refused to offer any explanation for his actions.” (G documents, pages 30 and 31)
Other charges
At the interview, Mr Stewart stated that there was an assault and robbery charge still outstanding. Mr Webb telephoned Mr Stewart’s solicitor and noted that there are two further charges pending in the Magistrates’ Court. One charge involves violence and the other involves the breach of his ICO. Mr Stewart thought that there are other charges in the Magistrates’ Court. He thought they related to his breaching the ICO but that came about because he had been detained. Mr Stewart said that he was unaware of any other charges in the Magistrates’ Court. Mrs Harrison knew only of the breach of the ICO.
Factors relevant to offences
Mr Stewart said at the interview that he believed alcohol should be taken into account as a mitigating circumstance. Marijuana was also a factor but essentially alcohol was the factor. He “Used to hate the police with a passion casually stated – not serious). They’re just doing their job.” (G documents, page 39).
In giving evidence, Mr Stewart said that, since being in detention, he has had time to think. He never had a father who was a role model for him. He has been in a growing up stage and knows that he has messed up. As for the charges, he has done his time and thought that was all finished. Even though he has been in Australia since 2000, his father has not been a role model, Mr Stewart said. He was just getting to know his father and agreed that he needed to give his father a chance to be a role model. Mr Stewart stated that he took all responsibility for his own actions when asked whether he took any.
Detention at Maribyrnong
An ISIS Incident Report dated 28 August 2004 recorded the views of officers at Maribyrnong regarding Mr Stewart’s detention and transfer to Maribyrnong. It records that three officers were sent to collect Mr Stewart from the custody of the Australian Federal Police as he was extremely intoxicated and violent. Once they had taken responsibility for him, the report notes that:
“… Detainee STEWART became aggressive whilst walking to the GSL Escort Vehicle, and indicated a movement that he intended to headbutt DSO Cordina. Detainee STEWART moved to the Vehicle without further incident. During the return trip to MIDC, Detainee STEWART was cursing the GSL Escort Officers and their families. Detainee STEWART was also spitting throughout the back of the Vehicle. On arrival to MIDC at approximately 2330hrs, all available Officers attended the Garage. Detainee STEWART continued his cursing, and also spitting during this period. Detainee STEWART made a request for a cigarette. This request was facilitated once the Detainee had calmed down. DOC TAYLOR advised Staff at this point that Detainee STEWART was to be placed straight into the Observation Room, with his pending induction to take place once he had infact sobered up. On walking to the Observation Room, Detainee STEWART made a movement so as to knock DOC TAYLOR with his shoulder. At approximately 0015hrs, Detainee STEWART was offered another cigarette, a shower, a coffee, a phone call, and a meal. Detainee STEWART was compliant during this process. DSO STEWART was not restrained during the escort, due to being transported in a secure Escort Vehicle, direct from a secure Police Facility to MIDC.” (Exhibit 2)
A second ISIS Incident Report noted that Mr Stewart verbally abused an officer at Maribyrnong the next morning while that officer was speaking with him regarding his having a cigarette, making a telephone call and being inducted. An hour or so later, he was compliant.
In cross-examination, Mr Stewart said that he had thought that prison officers were taking him back to gaol. At one point in cross-examination, Mr Stewart said that he thought that he had been taken to prison. He was being as humble as he could so that he could get out of the unit. A little, later, he said that he was “on alcohol” at the time. As he thought that it was happening all over again, he had nothing to lose. As it is, he has a lot to lose. He could not remember the incident to know whether the ISIS Incident Report was an accurate record of events of 28 August 2004 or not. He was still under the influence of alcohol the next morning as he had been drinking all day and the night before with friends. At the time, he was living at home.
Incident at Maribyrnong
A third ISIS Incident Report was written on 5 November 2004. It reads:
“At approximately 1834hrs DSO Finch was looking for Detainee Anusornchonseree MA 7104 to return his cigarettes. He found said detainee in Room 57 of the Male Dormitory, together with Detainees Stewart MA7200, Zekiroski MA8384, Rocca MA3596 & Timperio MA1013. Upon entering the room Officer Finch noticed Detainee Stewart picked up something from the table and asked detainee Stewart to show him what he had picked up. Detainee Stewart gave Officer Finch a crude finger sign and spoke to Officer Finch in profanities. Officer Finch at this stage noticed a strange looking bottle on the floor and picked it up. The said bottle was a Lipton Iced Tea bottle that had been turned into a device with holes punched front and rear and a empty biro casing poked thru one of the holes and held in place with bluetak, dark brown stains and foul smelly water were inside the bottle. DSO Finch promptly confiscated said bottle. DSO Finch once again asked for the item that had been passed around the above detainees and was handed a pair of haircutting scissors by detainee Zekiroski. These Scissors belonged to detainee Zekiroski and came from his Haircutting Case, which was also confiscated. The above items were handed by DSO Finch to DOC Taylor.” (Exhibit 6)
In his oral evidence, Mr Stewart said that he had been in a friend’s room at Maribyrnong. He was permitted to have scissors as part of his friend’s hairdressing kit. He picked up the scissors but they were taken by the officers. Mr Stewart said that he was not shown the bottle. Regarding the allegation that he had made a crude finger sign, Mr Stewart stated that the officers had been on to him ever since he had been taken to Maribyrnong. The officer had asked him what was in his hands; the officers always picked on them. He could not recall whether he had made the crude finger sign as he was too mad. He was too mad because, out of the whole group in the room, the officer started talking to him. Mr Stewart did not regard the matter as serious – it was not his room and was not shown what the officers took.
In cross-examination, Mr Stewart agreed that he had previously used marijuana but asked “what device” was being referred to in the ISIS Incident Report. When told that it was a bong, Mr Stewart responded that Mr Webb knew a lot about it. When it was suggested to him that he knew what a bong is, Mr Stewart replied that everyone has heard of a bong, Bob Marley and that he liked reggae music. The events had not happened in his room and he was just a visitor. He did not accept that anyone had been smoking marijuana. It was not his room and things go missing all the time.
Is Mr Stewart likely to re-offend?
At the interview, Mr Stewart said that he tried not to think of his criminal history as it was “pretty scary. Didn’t even think.” (G documents, page 38). When asked about the likelihood of his repeating the conduct, Mr Stewart was noted as saying that he “Has done his best since release to stay out of trouble.” (G documents, page 38). As to the steps he would take to ensure that he would not re‑offend, Mr Stewart said:
“Just don’t do it.
Go home instead of.Is settled in family environment now.” (G documents, page 39)
Mr Stewart said that imprisonment had been a:
“Wake up call – had to go there to realise things he had taken for granted.” (G documents, page 39)
In a statement lodged in the Tribunal on 8 November 2004, Mr Stewart wrote, in part:
“… I have a history of criminal conduct, and re-offending, but my family have always supported me, and in future I would like to be a good role model for my brother, if it could be possible.
My problems are largely related to alcohol, and there have been some drug problems, but I have undergone counselling for these problems and for anger management, and I am determined to improve myself.I received an ICO intensive correctional order which included some community work, and took up 6 days each week. I am really close emotionally to my immediate and extended family, and my ambition is to make them proud of me.” (Exhibit E)
In his psychological assessment dated 27 October 2004 but prepared on the basis of his interview with Mr Stewart on 28 August 2003 and his offending history, Mr Joblin concluded:
“At the time of my interview with him at the hospital at Port Phillip Mr Stewart presented in a cooperative manner. He was not aggressive. He was polite. He appeared to have a reasonable intellect but I would not consider him to be above average. I have noted his literacy skills and note that while he can read, he is unable to write. He reported that at the jail he had made some efforts to improve his literacy skills by attending the appropriate courses. Indeed, he reported that he has obtained a certificate for the completion of a level 1 English TAFE course. In my opinion that is important. Mr Stewart hopes to be able to continue through the various level as offered. A continuation of education would be important for him as he does have limited self respect and much of that is related to his perception of lacking any psychological base in the community.
I have outlined his history above in some detail. It is my opinion that when he came to Australia on the invitation of his father, he intended to work hard and develop an appropriate orientation to work as his father had demonstrated. Mr Stewart acknowledged that there were difficulties with that. He acknowledged that when he arrived in Australia and started to work, problems developed. It seems that he began to place less emphasis on the values espoused by his father. He began to leave home. His motivation to work diminished dramatically. Unfortunately he found others, many of whom were from New Zealand, who shared similar attitudes. With those friends Mr Stewart developed a reference and identity inconsistent with his father’s values. That reference and identity served as a defacto family for Mr Stewart and he found that the values of the group were exciting for him. Membership of that group was important to him and consequently he was reluctant to contradict the values of the group. Predictably he came into conflict not only with his father but also the law. On his report his father became perturbed by his behaviour and matters deteriorated. Mr Stewart reported that he would rarely live at home and became more involved with a group of youths who were similarly disposed. They had little conscience over antisocial behaviour or drug or alcohol abuse. For him life in that group was exciting and stimulating and unfortunately that continued in spite of various penalties imposed by the courts including CBOs and suspended sentences. There was no doubt in my opinion that at that point, short of some dramatic attempt at rehabilitation, Mr Stewart was not going to be able to change his ways.
Such dramatic intervention took the form of his being placed into custody. I note that he came into the MAP on the 11th of April 2003 and was transferred to Port Phillip Prison on the 22nd of May 2002 where he remains. Consistent with his presentation at the time of my interview with him, he has been placed into a less onerous unit at that jail and, in fact, even has a job as a billet in that unit. He is engaged in various educational courses. He has not yet been able to begin courses in drugs and alcohol as there is a long waiting list but he hopes to be able to do that. He is visited by his father and other relatives, a matter that he appreciates.
There are two issues of interest in the psychological assessment of Mr Stewart. The first is his extraordinary honesty and insight. Some of his insight is mentioned above but basically Mr Stewart acknowledged that the behaviour in which he participated with other young men as totally inappropriate. He recognised that if he continued in the same pattern, he was destined to get into serious trouble with the police. He acknowledged that at the time he had no conscience and considered it all ‘fun’. He considered that drinking alcohol and associating with an intimidating group provided a great relief from boredom. Again with a interesting degree of insight he indicated that if they were bored, using drugs or drinking alcohol and had no way of relieving their boredom, they would seek antisocial behaviour. Again when questioned as to the role of his father in his life at that time, he acknowledged that his father was upset, frustrated and exasperated and would often try to sit him down and talk to him. Mr Stewart acknowledged that he simply rejected all of that.
The second issue of interest with Mr Stewart is his current situation. Mr Stewart acknowledged that it took something like a period of imprisonment to make him realise that the values his father espoused were appropriate. Having been in custody since April and free of drug and alcohol abuse, he can now recognise the difficulties alcohol and drugs have occasioned many in the jail system and can place such use into a more appropriate perspective, one contrary to his previous orientation. Further it is apparent that at Port Phillip he has been able to progress as he has ‘earned’ his placement in this particular unit and the billet’s job there.
He can now outline an impressive degree of insight regarding his behaviour and what he should do about it. The issue is whether or not he will be able to utilise this insight to his benefit when he is released to the community. When discussing this and the possibility that he might benefit from some supervision, Mr Stewart reported that he does not want supervision as he wants nothing further to do with the criminal justice system whatsoever. He indicated that if he has supervision such as that provided through community corrections, he will encounter former associates and that may be dangerous for him and the community. Again in my opinion that reflects refreshing insight and is probably true.
Against that Mr Stewart reported that many of his friends have returned to New Zealand and he believes that only two or three of his former associates remain in the area.
Mr Stewart reported that he can return to live with his father and believes that he can find work.
With regard to supervision following any sentence of this Court his opinion is interesting as he acknowledged that on one hand he needs supervision to remind him of the inappropriateness of his life style over the past few years. On the other hand he is concerned about meeting up with others who were similarly disposed.
In my opinion the psychological basis for his deteriorated related mainly to his self-perception of being somewhat worthless and to his feelings of disaffection in Australia. He reported that when he first came there were cultural aspects of life in Australia that he enjoyed with his father but he admitted that he placed less emphasis on them than on those reflected by his more antisocial associates. He acknowledged that it would be more appropriate to adopt those cultural icons represented by his father.
The issue of feelings of disaffection is important in relation to the outline above regarding his group and it’s becoming his de facto family.
I felt at the time of my interview with Mr Stewart that if his insight and motivation on the 27th of August 2003 could remain following any sentence of this Court, he may develop a future not reflective of the past two or three years. The difficulty is to know how to ensure that. As indicated, he seems now to have some appreciation of his father’s values and seems to want to stabilise away from his former problems, work and achieve his ambition of buying a car and getting his licence back.
Mr Stewart is not simply a social write off. He has potential and is able to verbalise motivation. It is simply the case that that needs to be encouraged and developed, not so much while he is in custody but obviously outside an institution.” (Exhibit B, pages 3-5)
In her letter dated 8 November 2004, Ms Stewart said of her brother:
“… We are all aware of his past history … In his defence, I stand strong in saying that he is a harmless man of unprovoked, like anybody. He has been in trouble with the law, yes and on the same hand he has served his time or part of to pay for that. However his rehabilitation time was short lived through being apprehended by the Immigration Authorities. Because rehabilitation time was cut short, we may never know if he could have been rehabilitated. His past crimes I feel are largely due to alcohol abuse and the wrong group of friends. With counselling and support from his family this could be ‘cured’. To assist with Pere’s rehabilitation his father James is starting a family business that should help by bringing them closer together and to help Pere to remember his strong family roots that he once forgot, but also to give some structure in his life which is obviously absent.” (Exhibit G)
The future
Mr Stewart said that he wanted to be a role model for his younger brother, Norman, who really looks up to him. When he was in New Zealand, he was a role model for his younger brother, Jeremiah. Mr James Stewart said that Jeremiah would soon be coming to Australia to live.
If he were to return to New Zealand, Mr Stewart said, he would have nowhere to go. His mother’s husband has a drinking problem as well and he does not get on with him even though he loves his mother. Mr Stewart would not be able to go back to live with his mother.
In the interview, Mr Stewart said that he had “Finally woken up – have gone back to family – make a go of it this year” (G documents, page 44). His hopes and plans are to stay in Australia with his family, Mr Stewart said in cross-examination. He wants to put an end to all of the suffering that he has put his family through. That would be achieved by his working with his family in the family business planned by his father. His father, his brother and he would work in it and it would make the family stronger. They have never tried that approach before. In cross-examination, he confirmed that he had been trying to bring his life around when he had said he wanted to make a go of it.
In cross-examination, it was suggested to him that, despite his statement at the interview that he had finally woken up, he had not made a go of it. Mr Stewart replied that he had not been convicted of any further offence. Mr Webb was making him feel like a bad person; “real bad”. His family was at the hearing listening to all of this.
Mr Stewart thought that there are other charges in the Magistrates’ Court. He thought they related to his breaching the ICO but that came about because he had been detained. Mr Stewart said that he was unaware of any other charges in the Magistrates’ Court.
Mr Stewart said that he wants to be able to live in Australia so that he can get closer to his family in a profitable way and more emotionally. They stood by him in his court cases and he wants to put them out of their suffering and give them closure.
Mr James Stewart said that we must not give up on our children. His separation from his son’s mother plays a big part in the upbringing of his family. Separation always reflects on the children and which way they go on the straight and narrow or off the track. His son has gone off the track. While his son blames himself 100%, Mr James Stewart said that he blames himself 100%. He put it into his son’s head that Australia holds opportunities for employment. It is a multicultural and free country and that is why there are 300,000 Kiwis here. His daughter worked in New Zealand’s logging industry before she came to Australia and was paid only $6.50 an hour.
Mr James Stewart said that he and his son had been apart for 12 years. Even in the last thee years since his son had been in Australia, he said that he had not been there for him. Mr James Stewart said that he is a workaholic. The family loves his son to pieces. Coming to Australia was a culture shock for his son. He went from a small coastal town of 300 people to Melbourne. Uplifting him from New Zealand was hard but he could not leave him behind. He was “going nowhere” in New Zealand and he called New Zealand “a hole”.
Mr James Stewart said that Mr Webb had focused on everything that was bad about his son. There are worse people than his son, he said. Drugs are an everyday occurrence as is a bong. They are the same as getting ice cream from a shop and cannot be stopped. Mr James Stewart asked for one more chance to work with his son, Pere, and his son, Norman, to make them go straight. He himself has been employed full-time since he came to Australia. A person has to be lazy not to get work in Australia as there is untold employment. At the moment, he is working for an established firm shifting bricks around Melbourne. The firm is good to him and will get behind him if he starts his own family business. It is willing to contract him to water blast bricks. If he starts a family business, his sons will not go off the track if they are working with him. His son, Pere, will have the opportunity to take hold of himself and to be accountable. For the last three years, Pere has been in trouble. A person can only be led to the water and not made to drink it, he said. This time, he is going to make Pere drink it. Norman is on track now. Mr James Stewart said that he just wanted to have a chance to have a father and son relationship with Pere. Going to work at the mulch yard had been good even though they had not worked together when they got there. He had not known what his son did at the weekends.
Mr James Stewart said that he recognised that drugs and alcohol are a big problem with his people as is violence. What is shown in “Once Were Warriors” is true. They are frustrated, cannot be understood and are all cramped up with a big chip on their shoulder. “But whose fault is that?”, he asked. The officer who was running the anger management course told him that his son was doing well. No one deserved to have done to them what his son had done but his friends do not stick around when the heat is on. His boys are big built and are very intimidating. His friends cling to him because of his size.
Mr James Stewart said that he and Mrs Harrison do not intend to stay in Australia indefinitely. They still have a house in New Zealand but he wants to open doors for his children. They will stay as long as it takes to get their children on their feet. His plan is that the boys will take over the business once he has set it up.
Mr James Stewart said that his son is maturing. Working with him 24/7 without any weekends off is where the hope is. He has not done this before but he has every confidence that it will happen if they are given the chance. Nothing will deter him if they are given the chance. In the past, he has not talked to his son about changing his ways as he has been too much of a workaholic. He was never home as he had three jobs just to get ahead. He came to Australia to make money and he gave nothing back to his son. Mr James Stewart said that he had not been a saint in his young days but he never got caught. Australia was a real culture shock for him; people are always busy.
When asked whether his son had been given multiple chances, such as when he was given CBOs and an ICO, Mr James Stewart said that the chance was with him. He had not given his son a chance to work with him. His son had done the crime and done the time when he breached the CBOs. He was only asking for a chance to stay in Australia now that he has done the time. Mr James Stewart blames himself. He did not agree with Mr Webb’s proposition that ultimately his son was responsible for his own actions and that the focus should not be on his own responsibility but that of his son. When people cannot understand, they get frustrated. He had not gone to school but he knows the difference between right and wrong and he understands.
Mrs Harrison said that her stepson shows a lot of affection to his family including his little cousins. He is a loving, carrying boy and has always helped her about the house when he has been at home. Her stepson realises now what he has done and wants to make it right. New Zealand does not offer her stepson much; only $6.50 an hour in forestry and that is all that is offered there. Mrs Harrison thought that her stepson would succeed if he were permitted to remain in Australia. He would do so because he and his father would have a one on one relationship. She was aware of his drinking and has been something of a broken record about it. Mrs Harrison has been trying to make her stepson realise that what he is doing is no good; drink will ruin his liver, kidneys and brain.
In a letter dated 31 March 2004, Ms Fleur Stewart said that:
“… Coming to a strange new land with little knowledge and support, and no sense of direction is daunting and somewhat scary to say the least. Searching for some direction in his life, he was led astray which has led him to where he is today. … Since being released from jail in December of 2003 I noticed a positive change in his attitude. He has spent a lot of time with his new niece and has shown my fiancé and I just how caring and compassionate he can be. He has been a great help to me since his release. Perie has always been a shy and caring person, always willing to help never expecting much in return, so came as a shock to hear of the charges. I blame these on certain influences in his younger life that have evidently psychologically scarred him. Although a little late, Perie now knows what he wants in life and started to make some progress within him self. I advised Perie to postpone fulltime employment until his legal matters were settled and finalized to avoid possibly jeopardizing his employment, However, Perie felt that employment would help re-build his self esteem and his confidence which would in return give some positive output.
Perie commenced work with his previous employer on a casual basis to allow for time off for his court matters. Perie was incarcerated for 8 months.Whilst incarcerated he was stripped of his dignity, his pride his control and of course, Of his freedom. In saying this, I feel that he has served his time and it would only be fair to let him have the opportunity to prove to our society that, as a result of this, He has learnt from his mistakes and is willing to demonstrate this through positive change. I hope [he] is allowed to do this. To take this away from him would be to deny him of the human right to equal and fair justice.
I do not feel that he [is] a dangerous man, nor do I feel that he is of such a threat that he needs to be removed from Australia. I feel that deportation is rather extreme and unnecessary. Due to personal circumstances, we are unable to live with our mother in N.Z (hence the move to Australia) therefore the only other option for him was to live here with his immediate family being myself my father and our younger brother.
He is currently living with our father.
If Pere is allowed to remain in Melbourne,
I honestly feel that [t]his time he will finally take advantage of the opportunities this great country has to offer. I have always been Perie’s second mother, and as his second mother I feel that it is my job to help him re-claim his life and help him rebuild his self esteem, And through close contact with my family he has formed a close bond with my fiancé and also my daughter. He has changed I think with the new connections he has made there.
I love my brother dearly. He was put out of my reach once before,And I don’t want him taken way from me once again. I want him in my life. I want him in my daughter’s life also. We are all he has now and I hope he is given last chance at life. …” (G documents, pages 47 and 48)
In a letter dated 8 November 2004, Ms Fleur Stewart said that her brother is a harmless man if unprovoked. His time for rehabilitation has been short-lived because he was placed in migration detention. His past crimes are largely due to alcohol abuse and the wrong group of friends. With counselling and support and the support of his family, Ms Fleur Stewart felt that her brother could be “cured”.
Ms Fleur Stewart said that she had not seen her brother affected by alcohol. She thought that plan to start a family business would give her brother structure. He needs to wake up and have something to do. When he worked six days a week, the trouble decreased. This time, he would be working with his father as well. When asked whether her brother has the ability to provide a framework for himself, Ms Fleur Stewart replied that a person has to teach himself discipline and that discipline can come through habit. When she home-schooled him, her brother was out of bed before she was and was ready to get to work in the morning. He was still there when she arrived home from her course in the afternoon. She felt let down by her brother’s actions at Maribyrnong but still felt that he had a good chance. She felt a bit down for him.
Mr Tata has known Mr Stewart for the past three years. He also knows Mr James Stewart and Mrs Harrison and regards them as caring and loving parents. Mr Stewart has worked for Mr Tata, who has a welding and hydraulic servicing business, on a casual basis. Mr Tata found him to be a responsible person who finished his work without supervision. He regards Mr Stewart as a gentle and caring person. Mr Tata’s two sons look up to him as an uncle and Mr Stewart respects Mr Tata and his family as he does his own. In Mr Tata’s view, New Zealand does not offer much future for a young person. Mr Stewart needs to be given his chance, he said, and a lot of young people need that chance.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a SCCTY444 visa are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. The primary criteria set out in r. 444.2 of the Regulations state that the only criteria are those set out in s. 32(2)(a) of the Act and r. 5.15A of the Regulations. Of relevance in this case is the criterion that the Minister is satisfied that the applicant for a SCCTY444 visa is not a “behaviour concern non-citizen”. A “behaviour concern non-citizen” means, among other things, a non-citizen (as is a New Zealand citizen; s. 5(1)) who:
“(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b)has been convicted of two or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i)any period concurrent with part of a longer period is disregarded; and
(ii)any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii)the crimes were of the same kind; or
(iv)the crimes were committed at the same time; or
(v)the convictions were at the same time; or
(vi)the sentencings were at the same time; or
(vii)the period were consecutive; or
(c)has been charged with a crime and either:
(i)found guilty of having committed the crime while of unsound mind; or
(ii)acquitted on the ground that the crime was committed while the person was of unsound mind;
(d)has been removed or deported from Australia or removed or deported from another country; or
(e)has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.”
Even if a person satisfies the primary criteria for a SCCTY444 visa, s. 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d) …
Otherwise, the person passes the character test.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of merely determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant in this case. Of them, the Minister stated in the Direction:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
In considering whether a person is not of good character when measured against s. 501(6)(c)(i), decision-makers are directed that they:
“should take into consideration the following:
(a)the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and
(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.” (Direction, cl. 1.8)
In considering whether a person is not of good character when measured against s. 501(6)(c)(ii), the Minister directs decision-makers to take the following into consideration:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
The authorities regarding “good character”
In this case, the focus is upon Mr Stewart’s past and present general conduct as set out in s. 501(6)(c). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)
Does Mr Stewart pass the character test?
On behalf of the Minister, Mr Webb relied on Mr Stewart’s criminal record to support his submission that he is not of good character. Mr Stewart’s history of offending, I find, began some time before his first conviction for theft on 6 March 2002 and some time before he was first required to appear at the Dandenong Magistrate’s Court on 1 November 2001 on a charge of theft. Since then, he has had a further six appearances in the two years and seven month period until May 2004. In those six appearances, he has been convicted of ten charges of theft in one form or another and two of robbery, five of intentionally or recklessly causing injury (and one of those was serious injury), one of assault in company, two of intentionally damaging (or destroying) property, two of entering a private place without authority or excuse, one of procuring the hire of a motor vehicle by fraud, one of careless driving, one of unlicensed driving and one of behaving in an offensive manner in a public place. The types of offences are fairly evenly spread over the period. In addition, he has been convicted of two charges of failing to answer bail (one conviction in March 2002 and another a year later in March 2003), four charges of failing to comply with a CBO. The pattern is one of continual disregard of other people’s property and, in so far as the convictions for causing injury are concerned, a disregard for their safety. It is also a pattern of consistent disregard of authority and his obligations to the Australian community and its institutions.
The sentences imposed for his first three convictions in March 2002 were sufficient to show that the offences are unacceptable behaviour but were not so burdensome to destroy his hopes for the future. The sentences were of the sort that could be taken as a serious warning to Mr Stewart to change his ways. He did not change his ways and continued to ignore the warnings and also the assistance that he was then given in the form of CBOs. I find on the evidence that I have that Mr Stewart has been in breach of each CBO that he has been made in relation to him. As a consequence, I find that the sentences have become increasingly severe to the point where, in September 2003, a seven month term of imprisonment was imposed without its being suspended. Mr Stewart has said of some of the offences that the full story has not been given and his father says that his friends run away when there is trouble. I do not know whether I was given the full story but I am satisfied that Mr Stewart’s explanations have not diminished the seriousness of the offences.
Mr Stewart has been convicted of two further charges since his release. On the information available, I am unable to find whether those offences were committed before or after his interview with the Department but, given their timing, I am satisfied that they were committed after his release from prison in December 2003. I am satisfied that there are two further charges relating to his conduct after his release from prison. I accept that Mr Stewart has not been convicted of those further charges and have not taken any further account of them. His behaviour on his arrest and at Maribyrnong has not given rise to any charges or to any convictions but they are relevant in assessing Mr Stewart’s attitude to others. I accept that he thought that he was being taken back into police custody. I accept that he would have been very agitated at the thought. He was more than agitated, though. He was described as extremely intoxicated and violent. Mr Stewart did not dispute this description. At the time, he was still undertaking a CBO at which, on the basis of his evidence, I find that he was attending alcohol classes and anger management classes as part of his being subject to a CBO. By that time, he was also on notice that the Department was considering whether or not to recommend cancellation of his visa. That knowledge does not appear to have had any effect on his behaviour.
Having regard to the pattern of his offences and to the matters to which I have referred in the previous paragraph, I am satisfied that Mr Stewart has shown a disregard for the law. Certainly, it has been over a shorter period than some who come to this Tribunal but it is a pattern that is substantially repeated several times in that short period. It has been repeated even though Mr Stewart has been imprisoned and this is demonstrated by his latest convictions after his release from prison. I accept that Mr Stewart acknowledges that he has a problem with alcohol but his behaviour on his being detained shows that he has not changed his ways. It is not so much that he was intoxicated at the time but that he was violent at the time and that he has not demonstrated that he is trying to change his ways. He has displayed little, if any repentance, about his actions since then. On the basis of the ISIS Reports, which Mr Stewart did not dispute, I find that Mr Stewart verbally abused a detention services officer the next morning although he was later compliant. In another incident, he spoke to a detention services officer in profanities and gave a crude finger sign. Certainly, those incidents were a couple of months apart but, although he was neither abusive nor aggressive at the hearing, Mr Stewart presented himself as a “smart aleck”. That he would question what a bong is when he has admitted using drugs including marijuana is an example of one of his answers and statements at the hearing that puts him in that category. Mr Stewart also presented himself as someone who has been hard done by. It was Mr Webb who was putting him in a bad light in front of his family when he read out details of Mr Stewart’s offences; there was no mention by Mr Stewart that it was his own actions that put him in that bad light in the first place. It was his lack of a father figure who led him to behave as he did in wagging school. It was his lack of a father figure that led him to behave as he did in Australia. Mr Stewart made no mention of trying to find his own way and of setting his own framework. He wants his father to provide that just as he only wants people to speak well of him in front of his family.
Until Mr Stewart comes to understand that he has some responsibility for himself and that he is too old to blame others in the way he does, I find that Mr Stewart is likely to repeat the pattern of offending he has demonstrated since November 2001. Certainly, he has the love of his family and he has shown them love and affection in return. His family are good people but their love for each other has not been able to stop his offending in the past. Mr Tata also speaks highly of Mr Stewart but his regard for him over the past three years has not had any apparent impact on the pattern of his offending. That pattern has shown a disregard for Australia’s laws. It is not a pattern that is acceptable in a person who seeks to remain in Australia indefinitely as Mr Stewart is permitted to do on his SCCTY444 visa even though it is a temporary visa. Mr Stewart has not yet demonstrated that he has any strength of character that will enable him to follow a path other than that of regular offending as he has shown in the past. He has not shown that he has the strength of character to stop his drinking, to curb his reactions to the actions or perceived actions of those around him and to respect and tolerate other members of the community. Certainly he is, as he said, young and a person who just wants to have fun. The young should have their fun as should we all but not at the expense of the safety and security of the members of the Australian community and their property. Having regard to all of these matters, I am satisfied that Mr Stewart is a person who is not of good character.
The Direction – exercise of the discretion
As I have found that Mr Stewart does not pass the character test, I must now consider whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… 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.” (Direction, cl. 2.2)
The three primary considerations are:
“(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Stewart’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (Direction, cl. 2.5).
Of particular significance in relation to the seriousness and nature of Mr Stewart’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(f)murder, manslaughter, assault or any other form of violence against persons;”
(Direction, cl. 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Stewart as mitigating factors (Direction, cl. 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Stewart’s case, it is relevant to have regard to:
“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.” (Direction, cl. 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. There are no children in this case to whom I need to have regard.
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to … an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) …” (Direction, paragraph, 2.17)
Should Mr Stewart’s visa be cancelled on the basis of his not passing the character test?
On their face, some of Mr Stewart’s offences may be thought of as not being at the serious end of the scale but nine either involve injury to a person or, in the case of the two robbery convictions, involved either violence or threatened violence to a person. All of his offences show disregard for the Australian community. Apart from the aspects of violence that he has shown, what is serious about Mr Stewart’s offences is the pattern of their regular repetition. It affects the safety of others who live in the community as well as the security of their property.
Some of the offences have occurred when Mr Stewart was living on the streets. He stole what he wanted to get by on at this stage. Living on the streets is not always a matter of choice. In Mr Stewart’s case, I find that it was. He had a home where he was welcome to live and he gives no reason for not living there other than that he wanted to he was young and just wanted to have fun; his friends would call and he would jump at the chance to be with them. He chose his lifestyle freely and his choice cannot become an excuse for the actions that he undertook to maintain his lifestyle. Mr Stewart has pointed to the difficulties of living in a place such as Dandenong. I accept that he believes that it is difficult and that he believes that it is not easy to stay away from the people who will have a go at him. At the same time, he acknowledges that he can handle the situation better if he does not drink. On the basis of his own evidence, I find that the classes were not helping him very much. I also find that he did not regard the anger management classes as assisting him much. Mr Stewart has not put forward anything that he proposes to do about his problems. Certainly, he puts forward what his father will do with and for him but he does not address what he needs to do for himself. That must come from within him and is something that, with the best will in the world and all of his family’s efforts, he has to do for himself. Until he gains insight into his own behaviour, he will not be able to do it. Mr Joblin thought that Mr Stewart had started to gain that insight when he interviewed him in August 2003 after Mr Stewart had been in custody since the previous April. The incidents since then have shown, I find, that he has a long way to go. He is likely to repeat his offending behaviour and to commit offences that affect the safety of members of the Australian community and the security of their property. I refer to the reasons that I have already given in this regard (see paragraphs 80 to 84 above).
Cancelling Mr Stewart’s visa may conceivably give a jolt to people in a like situation. On the other hand, it may not. A person in Mr Stewart’s position has to have some degree of insight into his own behaviour to regard the cancellation of another’s visa as having any relevance to his own situation. I do not find it possible to make any finding regarding whether cancellation of Mr Stewart’s visa would prevent others from committing offences.
The Australian community tolerates the antics of those who are young and who just want to have fun. It is understanding of those who lose their way and who have difficulties with their families. It is less tolerant of the young and the not so young who threaten their feelings of safety and security. It expects its members to be able to control their alcohol intake and their emotions so that they stay within the bounds of the law. It expects them to take advantage of the opportunities that are offered to them when they do lose their way and engage in behaviour that leads to their being convicted of offences.
Mr Stewart has threatened their feelings of safety and security; has not controlled his intake of alcohol or his emotions and has breached the first four CBOs that he has been placed on and is charged with breaching the fifth. This is not a person who the Australian community would consider should be allowed to live here on an indefinite basis.
I find that the majority of Mr Stewart’s immediate family live in Australia. Only his mother, stepfather and his younger brother live in New Zealand and even his younger brother is soon coming to Australia. I accept that he does not get on with his stepfather and that he could not return to his mother’s house were he to return to New Zealand. I also find that his family in Australia want to help him in every way. His father, in particular, blames himself for what his son has done. His father wants to make it right for his son and sees himself as providing his son’s only chance. That is by providing the framework for his son to be tied up with him in work so that he does not have time for anything else. Mrs Harrison and Ms Fleur Stewart are both good hearted and strong women. They support the arrangement.
Such an arrangement may work in the short term but I am not satisfied that it is a long term solution to Mr Stewart’s pattern of offending. He is always prepared to rely on somebody else or to blame someone else but he does not look inside himself for any solutions to his situation. Until he does that, I am not satisfied that he will gain the maturity and insight that he needs to change his ways. The strength that his family has cannot do it for him. His father blames himself for his son’s behaviour because he has not been there for him in New Zealand in recent years or, because he is a workaholic, in Australia. That may be but his son must also bear responsibility for seeking him out and he cannot do that while he chooses to be with his friends rather than at home with his father, stepmother, brother and stepsister, Jessica. Ultimately, Mr Stewart has to find a sense of responsibility and strength in himself rather than looking to others to provide it for him.
If Mr Stewart is required to return to New Zealand, he will be on his own although he will be able to visit his mother whom he cares about. His family in Australia will have lost the presence of a dearly loved member of the family. His nieces will not benefit from seeing the loving side of their uncle. They will be able to visit him in New Zealand and, ultimately, Mr Stewart and Mrs Harrison plan to return to live in the house they own in New Zealand. There was some mention of their returning in five years or possibly ten. The plans of Mr Norman Stewart and of Ms Fleur Stewart and her fiancée are not clear. It will be hard for Mr Stewart while he is unable to live with his family. In view of the findings that I have made regarding his offences and the likelihood of his repeating them, I consider that the need to protect the Australian community outweighs Mr Stewart’s interests and those of his family. He should not be permitted to remain in Australia.
For the reasons I have been given, I affirm the decision of the respondent dated 28 July 2004.
I certify that the one hundred and two preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
R. Crook Associate
Date of Hearing 11 November 2004
Date of Decision 22 November 2004
For the Applicant unrepresentedSolicitor for the Respondent Mr T. Webb
Clayton Utz
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