TALBOT and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 791
•15 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 791
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3306
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM TALBOT Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date15 October 2010
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that Mr Talbot’s visa should not be cancelled.
.......................[sgd]...............................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – Ministerial discretion – substantial criminal record – risk of recidivism – risk to the community
Migration Act 1958 (Cth)
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re JSFD and Minister for Immigration and Citizenship (2009) 111 ALD 685
Re Muhammad Kamal Fauzia Kamal and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 982
REASONS FOR DECISION
Ms N Bell, Senior Member 1.
William Talbot came to Australia from New Zealand in 2003 when he was 16 years old. He said his mother sent him here to live with his uncle so that he could escape the gang activity that was a feature of his and his family’s life in
New Zealand. Mr Talbot said he had been recruited into the Black Power gang at the behest of his stepfather at age 11. Six months after he arrived in Australia he was charged with common assault, the offence was proved and a six month bond imposed by the Children’s Court. There began five years of conduct that gave rise to a total of 17 convictions culminating, in 2009, in a sentence of two years imprisonment for intimidation and arson.
2.
A year after his arrival in Australia, Mr Talbot’s uncle kicked him out.
Mr Talbot spent the years that followed largely homeless and without income support except for earnings from occasional work for the house painting business owned by the father of a friend. He fell in with a troublesome crowd and began to abuse alcohol and drugs. Mr Talbot has been assessed as having a borderline intellectual disability. He was not a very articulate witness and often struggled to find the words to answer questions asked of him in the hearing. However, he impressed me as direct and honest in his answers and I am satisfied that he answered as best he could.
3. Section 501(2) of the Migration Act 1958 (the Act), provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that on 4 June 2008 Mr Talbot was convicted of affray and two counts of assault occasioning actual bodily harm and was sentenced to a term of imprisonment greater than 12 months. There is also no dispute that on 15 October 2009, Mr Talbot was convicted of attempt to damage property by fire and two counts of intimidation and was sentenced for a term greater than 12 months. It therefore follows that he does not pass the character test.
4. The discretion of the Minister to cancel Mr Talbot’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction 21 and came into effect on 15 June 2009. The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
5. The primary considerations in the Direction are:
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
6. These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.
primary considerations
7. The primary consideration most relevant to Mr Talbot’s circumstances, given his convictions for violent crimes, is the protection of the Australian community. I note that none of Australia’s international obligations arise. He was 16 when he came to Australia and he is now 23 years old. He first offended six months after he arrived. He is no longer a minor and has no children.
protection of the australian community
8. The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the seriousness and nature of the conduct and the risk that the conduct may be repeated.
9. As to the seriousness of the conduct, I note that two of the crimes for which Mr Talbot was incarcerated (assault and arson) fall within the list of crimes set out in the Direction and described as serious. I also note that Mr Talbot’s record of offences runs to 17 convictions in the space of six years. Most of those convictions are for minor offences including theft and possession of drugs. He was last convicted in 2009 and thereafter imprisoned. However, I note that in April 2010 he was involved in a fight in goal in which his opponent suffered injuries that required reconstructive facial surgery and Mr Talbot was placed in segregation for two weeks and then moved Cessnock Correctional Centre. I also note that he was interviewed by the Police in relation to the incident and no charges were laid.
10. The assault committed by Mr Talbot in September 2007 was on a person not known to him. The victim had become involved in a verbal argument with a friend of Mr Talbot’s in a take away food shop. Mr Talbot was standing outside the shop and when called in by his friend, Mr Talbot punched the victim to the side of his head, rendering him unconscious. Mr Talbot’s associates kicked the victim while he was on the ground and stole his wallet.
11. The assault committed by Mr Talbot in October 2007 took place when the victim was standing with a group of his friends in a carpark and a group of ten people including Mr Talbot approached him. Mr Talbot began yelling at the victim. The victim commenced to walk away, but was punched by a member of Mr Talbot’s group and fell to the ground unconscious. Mr Talbot then punched the victim. Others then kicked him and his wallet was stolen.
12. The offences of arson and intimidation took place when Mr Talbot terrorised two victims who then locked themselves in a room for protection. The room had only one exit and one barred window. Mr Talbot with a co-offender set a fire at the door of the room using cardboard boxes and fire starters. The room began to fill with smoke and the victims tried to help themselves by turning on a fan. Then they heard the voice of Mr Talbot asking for water with which he put out the fire. The Court accepted that Mr Talbot had put the fire out and found that fact to be a substantial tempering factor that placed the offence at the bottom of the range of offences of that type. However, the Court found the offences of intimidation to be “of a high order”.
13. Both sentencing judges referred to Mr Talbot’s sad life. Judge Sorby, in relation to the assault convictions, noted, as mitigating factors:
The offender was born on 28 June 1987 and aged 20 at the date of the offences. He is a New Zealander by birth and was raised in a rural part of New Zealand by his mother and stepfather and was subject to what he described to psychologist,
Ms Seidler [sic], as “a pretty rough upbringing”. He was exposed, through his stepfather to criminality and substance abuse at a young age. He witnessed violence by his stepfather towards his mother and siblings. He left home aged 16 years with limited schooling and came to Australia, encouraged to do so by his mother. He found living in Australia difficult without friends or much family support. He lived on the streets for a while, living an aimless and drifting lifestyle. He was ineligible for social security benefits because he is not an Australian citizen. He obtained accommodation through the Bondi Youth Accommodation Service for six months prior to his incarceration for these offences. He has had little employment experience except for some months before his arrest where he worked as a painter. His employer was in court to support him and is prepared to offer him further work should work become available to his business. That same employer is also encouraging the offender to start an apprenticeship as well. The offender has had issues with alcohol and drugs from an early stage as set out in the report of the psychologist, Ms Seidler. At paras 21 and 22 Ms Seidler records:
According to his account Mr Talbot first consumed alcohol around the age of 11 year which is an early transition to substance abuse. Mr Talbot describes a regular pattern of weekend alcohol use, generally to the point of intoxication appears as a social activity. Mr Talbot stated that his use of alcohol has never been problematic or indicative of dependence, nor was there any association between his alcohol use and psychosocial harms. Mr Talbot reported that his use of cannabis also dates back to the age of 11 years. At the time his use of this drug has increased to the extent that he has been smoking up to eight joints a day at the age of 15 years, seemingly as a means of coping with personal and family problems.
The offender did not give evidence before me as I said, and express any remorse for his actions. The report of Ms Seidler records at para 26:
Mr Talbot acknowledged his involvement in the offences currently before the court, his account of which was consistent with that contained in official documentation. Mr Talbot claimed that his offending was motivated by a desire to support his friends which he stated is a common accepted value within the gang culture. Mr Talbot acknowledged the inappropriateness of his behaviour as well as expressing seemingly general remorse for the impact of his behaviour on the victims. He only had superficial ideas about how to negotiate such complex social situations without resorting to anti-social behaviour.
I am prepared to accept that the offender is remorseful for what he did.
14. As to the risk of Mr Talbot repeating the conduct, I note the full record of Mr Talbot’s convictions is as follows:
·24 July 2006 – possess prohibited drug
·
22 August 2007 – enter vehicle or boat without consent of owner/occupier
(3 counts); larceny (value less that $2000); goods in personal custody, suspected being stolen (not MV); shoplifting (value less than $2000); possess prohibited drug (2 counts); destroy or damage property (value less than $2000); and possess/use a prohibited weapon without permit
·4 June 2008 – assault occasioning actual bodily harm; and affray
·21 July 2009 – possess prohibited drug; and custody of knife in public place
·15 October 2009 – Stalk/intimidate intend fear of physical/mental harm; destroy etc property in company use fire etc (value less than $2000)
15. Over just seven years Mr Talbot’s criminal activity has been frequent and largely of a minor nature. I accept his evidence that the majority of his offences were for the purpose of obtaining money to live or with which to buy drugs. His convictions for possession of drugs are self explanatory. Of his seventeen convictions, three attracted custodial sentences and these are his most recent convictions.
16. I also note that Mr Talbot breached bail on five occasions.
17. I accept Mr Talbot’s evidence that he is willing to undertake rehabilitation and that his attempts to progress through programs offered in goal have been frustrated by their limited availability and by his movement between prisons. He completed two sessions of a relapse and recovery course and attended several alcohol and other drug group sessions. He also did seven sessions of a “managing emotions” course.
18.
During Mr Talbot’s last period of incarceration from February 2009 to
August 2010, he worked when work was available, gardening and packing. He said he always feels better when he has a job to do.
19. In Mr Talbot’s case, perhaps more can be gleaned from an assessment of the prospects of further rehabilitation. Of particular importance to this issue was the evidence of Mr Jamie Alford, social worker with the Public Interest Advocacy Centre, Ms Sue Underwood, co-ordinator and youth worker with Bondi Outreach Project, and Mr Gabriel Kheirallah, case worker with Bondi Youth Accommodation. The evidence of Mr John Taylor, forensic psychologist, was also particularly enlightening.
20.
Mr Alford described the problems that have faced Mr Talbot: physical violence from his stepfather; exposure to criminality and substance abuse from an early age; disruption to his education by his stepfather’s demands that he stay home from school; and an intellectual disability that remained undiagnosed until May 2008.
Mr Alford has visited Mr Talbot in goal on five occasions since July 2009. He describes Mr Talbot as a polite and friendly person who is willing to engage in support.
21. Mr Alford has co-ordinated a support arrangement for Mr Talbot comprising two years of semi-supported youth accommodation in Matraville through Bondi Youth Accommodation; an Inner City Youth at Risk brokerage program amount of $4,300 to assist Mr Talbot’s transition into the community, covering rent, groceries, public transport, clothing, work boots and a contribution towards sport and vocational training for Mr Talbot’s first three months in the community; art and music programs through Mission Australia Creative Youth Initiatives and Salvation Army Oasis Youth Support Network; anger management and drug and alcohol support through the NSW Probation and Parole Service; psychological intervention around peer influences and prevention of involvement in peer related crime through community programs with, if available, the NSW Probation and Parole Service; consultation with psychologist Elizabeth Munro of Assure Psychology, subject to eligibility under the Medicare Mental Health Plan; and additional casework support, practical assistance and referral services to be provided by Mr Alford himself.
22. Mr Alford said that Mr Talbot has expressed a strong desire to remain in Australia and has said he fears the measures involved in disassociating himself from gang life were he to be returned to New Zealand. He said Mr Talbot has some interests, like football and music, that he is keen to pursue and said that this augurs well for him because, apart from the basic goals like accommodation and employment, self actualisation goals are important as well.
23.
Mr Alford said he will co-ordinate a support plan for Mr Talbot, drawing on his own organisation’s resources and on the resources and expertise of Ms Underwood and Mr Kheirallah, both of whom have worked with Mr Talbot in the past. He said the three of them will have regular case conferences with Mr Talbot on at least a monthly basis and maintain regular contact between them with Mr Alford taking a
coordinating role. He said he would also call on other available services as the need arose. Mr Alford said he intended to meet with Mr Talbot two or three times per week for the first few weeks after his release and would then follow up with a weekly meeting with him.
24.
Mr Alford said he considered Mr Talbot’s employment prospects to be good, knowing that in the past he had worked in construction and painting, and that he would assist him with job searching. He said he considered stability of accommodation and employment to be the most important thing to ensure
Mr Talbot’s successful re-entry into the community. He said he considered addiction to be less of a problem for Mr Talbot and that it flowed mainly from homelessness, lack of support and lack of positive engagement, all of which will be addressed by the plan in place.
25. Ms Underwood works with the Bondi Outreach Project accessing young people frequenting public places in the eastern suburbs of Sydney who are at risk of offending, homelessness or drug and alcohol misuse. She first came into contact with Mr Talbot in 2004 when he was sleeping on the couch of a friend or on the street. She has had regular contact with him since then and will be part of the team to be co-ordinated by Mr Alford. She said that he began to come to the attention of the Police “for silly little things” and had asked for her support at the Children’s Court. I note that Mr Talbot spoke of Ms Underwood with obvious respect and affection.
26.
Ms Underwood said that she has kept in touch with Mr Talbot’s friends and said they have all moved on. She took that to mean that Mr Talbot will get more support now from his peer group, who she considers to be more grown up and independent now and less likely to make demands of Mr Talbot. She described
Mr Talbot as a “generous soul” who sometimes was “swamped by other people’s wants and needs”.
27.
Ms Underwood considered that the coordinated plan to be implemented by
Mr Alford will give Mr Talbot the security that he needs and has never had before. She said that having adults around him who will support and guide him will keep him in the right direction. She said that Mr Talbot has changed in that he has matured and knows that he does not want to go back to the existence he had before. She said he wasn’t happy before and he got swept up in what his peers were doing. She said that now, with the kind of practical support he has in place, his chances of being a productive member of the community are very good.
28.
Mr Kheirallah is a youth housing worker with Bondi Youth Accommodation. He manages the tenancies and case plans of the organisation’s clients – young people 16 to 25 years old in semi-independent youth accommodation. If Mr Talbot is released into the community Mr Kheirallah would see him two to three times per week for a period of two years. There is accommodation ready and waiting for
Mr Talbot now.
29. Mr Kheirallah said that the service had housed Mr Talbot for approximately five months prior to him being incarcerated. He described him as a compliant tenant, but said that, as sometimes happens with youth accommodation, his friends who were not occupied during the day would sometimes come to Mr Talbot’s home when he was at work and Mr Talbot would come home and find these people staying until late at night. He said it was tough for Mr Talbot because he had to work in order to survive because he was not eligible, as a non citizen, for Centrelink benefits.
30. Mr Kheirallah said this problem will not arise again because the property where Mr Talbot is to be housed is at Matraville and not at Bondi where his former influences came from. He will be sharing with another person and that will assist the service to remain aware of what is going on.
31. Mr Kheirallah said that Mr Talbot now seems more grown up, settled and focussed. He said Mr Talbot has committed to the two year program this time. He said that part of that commitment is to find full time work before the brokerage money is expended – three months. Mr Kheirallah said that this will be a particular focus for him and that his employer has allowed him additional resources so that he can spend more time with Mr Talbot.
32. I note, in relation to Mr Talbot’s prospects of employment, that he was regarded by his former employer, Mr Small, a builder, to have been “a good person and an even better worker”. Mr Small, in a glowing report, recommended Mr Talbot to other employers.
33. Mr Kheirallah said that Mr Alford’s coordination of his and Ms Underwood’s work with Mr Talbot, and the additional resources and knowledge that Mr Alford brings to the plan, will make an enormous impact on the success of the work proposed to be done with Mr Talbot. Mr Kheirallah said Mr Talbot’s attitude is very positive and he is optimistic about Mr Talbot.
34.
Mr Taylor, forensic psychologist, initially assessed Mr Talbot’s risk of recidivism as moderate. He made that assessment without detailed information about the support proposed to be given to Mr Talbot by Mr Alford, Ms Underwood and Mr Kheirallah. In answer to a question from the Tribunal, Mr Taylor said that support of the kind to be provided to Mr Talbot is generally important, and, for
Mr Talbot in particular, it is very important. He gave as reasons for this, Mr Talbot’s vulnerability to influence by others and his intellectual limitations which, he said, make it more difficult for him to make independent evaluations. He said that provided a person is receptive to the support offered, the existence of that support weighs heavily when assessing risk of re-offending. He also said that support in regaining the sense of personal responsibility lost during incarceration is of great importance to securing and maintaining more basic and essential supports such as accommodation, income and personal or emotional support.
35. Mr Taylor said that if Mr Talbot gains and accepts the specific support proposed to be provided by Mr Alford, Ms Underwood and Mr Kheirallah, his risk of recidivism will move to the low to low moderate range which, he said, removes the significance of risk.
36.
Mr Taylor also described the Invictus Program of support and counselling that he established and said there is a place in that program for Mr Talbot. The program has had considerable success. However, he also said that if Mr Alford is able to
co-ordinate a comprehensive program of practical and counselling support for
Mr Talbot it would be a valuable “one stop” system, better able to be participated in by Mr Talbot. He also said that he assessed Mr Talbot as “treatment ready”, meaning that he considers Mr Talbot is motivated to actively participate in his own treatment.
37. Mr Taylor also said, in the context of Mr Talbot having received support previously from Ms Underwood and Mr Kheirallah, that it is not unusual for people to relapse at points prior to their ultimate rehabilitation.
38.
I note that, against this optimism on the part of Mr Alford, Ms Underwood,
Mr Kheirallah and Mr Taylor, is a lack of demonstrated rehabilitation. Rehabilitation has commenced, but because of Mr Talbot’s movement between prisons it has not been completed. It is the common view of all witnesses that accommodation and employment are crucial to rehabilitation. There is no guarantee that Mr Talbot will obtain employment and he will have funds to survive for just three months and no recourse to the Australian income security system if employment is unavailable.
Mr Talbot has had assistance from Ms Underwood and Mr Kheirallah before and he still re-offended. Mr Talbot has said that he now understands that he should discuss matters rather than respond with violence and yet he was involved in a fight in prison in April of this year.
39. Mr Talbot’s criminal record is a long one, particularly considering his young age and the short period the record spans. It has a haphazard quality about it and there is no evidence to suggest that Mr Talbot’s offences were committed in a planned or organised way. He has breached judicial orders on five occasions and appears to have been unmindful of his obligations to the courts.
40. It cannot be said that there is no risk of Mr Talbot re-offending if his visa were not to be cancelled. The risk posed is undoubtedly greater than if he had not lived the life he has lived over the last seven years.
41. However, the program of support that has been developed for him and the evident commitment of Mr Alford, Ms Underwood and Mr Kheirallah to that program, and indeed to Mr Talbot himself, is impressively comprehensive and dedicated. Two of these people, both experienced professionals, have known Mr Talbot for some years. They know who they are dealing with; they have seen him struggle and fail before. They bring to Mr Talbot’s proposed rehabilitation an informed optimism. Added to their contribution are the considerable expertise and resources brought by Mr Alford who will have a co-ordinating role as well as a supportive one. From their combined evidence it appears that Mr Talbot would, if released into the Australian community, have the benefit of at least twice weekly contact with Mr Alford, contact two or three times per week with Mr Kheirallah, regular contact with Ms Underwood and a monthly meeting with all three. This would all be in addition to regular contact with a parole officer and contact with a counsellor and other service providers arranged by Mr Alford and the others. This is an extraordinary level of professional, practical and emotional support and goodwill.
42. Mr Talbot has no family support available to him but my overwhelming impression is that there will be a familial aspect to the support he would enjoy from Mr Alford, Ms Underwood and Mr Kheirallah.
43. Mr Taylor, who I note approaches the matter from considerable practical experience having established his own program for rehabilitation of young offenders, considers the risk of recidivism by Mr Talbot to be not significant on the basis of the proposed support outlined above and of his own examination of Mr Talbot.
44. On balance I must agree. There is a risk, but I consider it to be slight. On this basis, the consideration of the protection of the Australian community weighs slightly in favour of cancellation.
whether a minor when began living in Australia
45. Mr Talbot was 16 when he arrived in Australia. The vast majority of his formative years were spent in New Zealand. It follows that, while this consideration weighs slightly in his favour, its impact is marginal.
length of time resident in australia prior to criminal activity
46. Mr Talbot was resident in Australia for only six months before his first criminal activity. This consideration should be weighed in light of the violent circumstances of his accommodation with his uncle and his young age when he first offended. However, it weighs marginally against him.
international obligations
47. There are no international obligations relevant to Mr Talbot’s circumstances.
other considerations
family ties
48. Mr Talbot has no effective family ties in Australia. It is telling that he received no visits from family members when he was in prison. His mother, his stepfather and his brothers all live in New Zealand. Mr Talbot said that it was hard to leave his mother. However, the nature of his relationship with his stepfather and the life he led with his family in New Zealand, which I note is a life he sought to escape by coming to Australia, effectively neutralise the benefit of these family ties in New Zealand.
49.
I am particularly mindful in this respect of the matters contained in the report of Dr Katie Seidler, psychologist, who provided a pre-sentence report to the Court on
20 May 2008. Among the matters noted in her report were:
(a)Mr Talbot being “exposed to criminality and substance abuse from a young age”, mainly due to his stepfather’s involvement in “an antisocial gang”;
(b)
Mr Talbot’s stepfather’s violence towards Mr Talbot’s mother, and
Mr Talbot’s frequent “attempt[s] to intervene in this violence in order to protect his mother”;
(c)
Mr Talbot’s stepfather’s frequent violence towards Mr Talbot himself, including hitting him with “various household objects, including a spade, jug, hose and tree branch”, on one occasion requiring
Mr Talbot to seek emergency medical treatment;
(d)The fact that Mr Talbot “took a great deal of this violence onto himself in order to protect others” (that is, other members of his family);
(e)Mr Talbot’s stepfather’s “reluctan[ce] to let the children out of the home, preferring them to assist with chores and other duties, to the detriment of education or peer relationships at times”; and
(f)
Mr Talbot’s mother’s letter dated 30 April 2010 that was provided to the Court “acknowledged the history of violence in the family home”. The letter also referred to a violent incident where she witnessed
Mr Talbot’s stepfather throw a hammer Mr Talbot and another incident where Mr Talbot’s stepfather attempted to strangle Mr Talbot.
50. It follows that this consideration, if it weighs at all, weighs as a consideration against Mr Talbot returning to his family in New Zealand and therefore marginally against cancellation.
age
51. Mr Talbot is a young man of 23. There is no consequence of his age that weighs either for or against cancellation.
health
52. There is no evidence of ill health for Mr Talbot. This consideration is neutral.
links to new zealand
53. Mr Talbot’s family is in New Zealand and so is the gang into which Mr Talbot has been initiated and of which Mr Talbot’s stepfather is a member. Mr Talbot spoke with some sadness of his mother and of his younger brothers, but described a violent and crime driven existence in gang culture. He explained that where he lived ”there are no coppers” and said that income is generally derived from criminal activity rather than from employment. He said his house in New Zealand has been “shot up”.
54. He referred to a four month visit back to New Zealand when he was 17 and spoke of the parties that would go for days at a time and the violence and drunkenness amongst the men and the women, young and old.
55. When asked if he is still a member of the gang even though he has been away for seven years, he was adamant that he still has his “colours” and that, should he return, he would be collected at the airport by gang members eager to have him back.
56. He also described the process of “walking the line” - a line of armed gang members through which one must pass in order to leave the gang.
57.
This evidence was corroborated by Mr Alford, Ms Underwood and
Mr Kheirallah and by Mr Taylor. Mr Talbot had given consistently similar accounts to all of them. Mr Talbot’s accounts to Ms Underwood and Mr Kheirallah have been over a number of years.
58. Mr Talbot’s links to New Zealand are, in their way, strong, but they are harmful to him. This consideration weighs against cancellation.
hardship
59. In addition to the matters noted above in relation to family ties and links to New Zealand, Mr Talbot fears being pressured to return to gang life if he is returned to New Zealand. The prospect of “walking the line” clearly concerns him and it seems that, if he returns to his home, he will have no alternative but to resume the life he left. His evidence has been corroborated as noted above. It is noteworthy that, as described by Dr Seidler in her report of 20 May 2008, Mr Talbot’s mother arranged for him to come to Australia following his stepfather’s attempt to strangle him. Her aim was for Mr Talbot to have a “fresh start”.
60. It was put to Mr Talbot that if he returned to New Zealand he could settle somewhere other than his home area. His response was that he would be back to “square one”. There is no evidence of other relatives living away from his home area from whom he could obtain support and no evidence of government or community sector support that would be available to him. It is possible that he could avail himself of state income support, but it is not clear that he could obtain there the comprehensive and committed program of rehabilitative support that has been developed for him here – and no evidence at all that it would be available to him immediately as it is here. It should be noted, as it was by the Tribunal in Re JSFD and Minister for Immigration and Citizenship (2009) 111 ALD 685, that authorities in New Zealand may not be prepared to provide rehabilitative support in respect of the effects of criminal activity that took place in Australia. I accept Mr Taylor’s evidence of the importance of effective support to Mr Talbot and the likelihood that if he returns to an environment that exposes him to negative influences he will re-offend. It should not be forgotten that Mr Talbot has a borderline intellectual disability and that starting again alone in an unfamiliar place, albeit in his country of birth, could present particular challenges to him.
61. I am satisfied that if Mr Talbot returned to New Zealand he would suffer hardship. This consideration weighs against cancellation.
level of education
62. Mr Talbot left school in New Zealand in Year 8. In Australia, Mr Talbot has immediate support, through the brokerage funds arranged for him, to embark on short training for employment. He gave evidence of his willingness to undertake a TAFE course to obtain painting or other qualifications. There is no evidence of similar opportunities for him in New Zealand. In addition, his lack of education, combined with his borderline intellectual disability, limits his ability to advocate on his own behalf. In Australia, he has a number of people, some of whom gave evidence in his support, who are available to advocate on his behalf. This consideration weighs against cancellation.
formal advice
63. Mr Talbot received no formal advice by an officer of the Department of Immigration and Citizenship about the conduct that has brought him within the deportation provisions of the Act. While I note that Mr Talbot has, in effect, received many warnings about the consequences of his conduct generally over the last few years and appears not to have been deterred, this consideration weighs marginally against cancellation.
the balance of considerations
64.
Of the primary considerations, two weigh slightly in favour of cancellation. The protection of the Australian community would be subject to risk if Mr Talbot
re-enters the community and does not respond positively to the support that would be available to him. However, I consider that risk is insignificant, for the reasons outlined above. Still it is a risk that is real (see Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493) and it must be balanced against all other considerations that may weigh against cancellation.
65.
Another primary consideration that weighs in favour of cancellation, the length of time in Australia before first offending, weighs even less in favour of cancellation than does the risk to the community. I agree with Counsel for Mr Talbot that it is outweighed by the consideration of Mr Talbot’s minority age on arrival here, even though that consideration weighs against cancellation only slightly (see
Re Muhammad Kamal Fauzia Kamal and Minister For Immigration and Multicultural and Indigenous Affairs[2005] AATA 982).
66. Of greater impact, given Mr Talbot’s history in New Zealand, are the other considerations of family ties, links to New Zealand and hardship to Mr Talbot were he to be returned to New Zealand. These considerations combine to weigh heavily against cancellation.
67. On balance, I consider that the “other” considerations that weigh against cancellation significantly outweigh the primary considerations that weigh slightly in its favour.
decision
68. The decision under review is set aside and instead the Tribunal decides that Mr Talbot’s visa should not be cancelled.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ......................... [sgd]....................................................
Associate: Lloyd DohertyDates of Hearing 29 & 30 September 2010
Date of Decision 15 October 2010
Counsel for the Applicant Ms Brenda Tronson
Solicitor for the Applicant Ms Jane Sanders, the Shopfront Legal Centre
Solicitor for the Respondent Ms Jan Cumming, Clayton Utz
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