TANIA CLARK and MINISTER FOR IMMIGRATION AND CITIZENSHIP Mr R G Kenny, Senior Member 30 January 2013 Brisbane
[2013] AATA 41
•30 January 2013
[2013] AATA 41
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5132
Re
TANIA CLARK
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION`
Tribunal Mr R G Kenny, Senior Member
Date 30 January 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (Temporary) Visa – Cancellation – New Zealand citizen – Entry to Australia in 1991 at age 18 years – Substantial criminal record of serious offences and failure to comply with court orders – Failure to pass character test – Discretion to cancel visa – Relevant considerations – On balance, primary and other considerations favour cancellation of visa –– Preferable decision is that visa be cancelled – Decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501(2), 501(6), 501(7)
CASES
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
30 January 2013
THE APPLICATION
On 2 November 2012, Tania Clark’s[1] Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) was cancelled by a delegate of the Minister for Immigration and Citizenship (“the respondent”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Mrs Clark has applied for review of that decision.
[1] Also known as Tania Winifred Paula Wiipiti and Tania Paula Paynter.
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
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 defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the character test within the meaning of that section. In the present case, the relevant circumstance relied upon is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the character test, a person has a substantial criminal record. In the present case, the relevant circumstance is that specified in s 501(7)(c) of the Act, namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
It is not disputed that Mrs Clark has been sentenced to a term of imprisonment of more than 12 months or that she has a substantial criminal record under ss 501(6) and (7) of the Act. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister has issued Direction No. 55[2] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[3] making decisions under s 501 of the Act.
[2] Direction No.55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.
[3] See s 499(2A) of the Act and the term “decision-maker” in Annex B of the Direction.
In the Preamble to the Direction, the objective of the Act is stated to be the regulation, in the national interest, of the coming into and presence in Australia of non-citizens.[4] It provides that, if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that he/she passes the character test, “the decision-maker must consider whether to exercise the discretion to cancel the visa given the specific circumstances of the case”.[5] The Preamble also provides “General Guidance” including the following:[6]
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
[4] See cl 6.1(1) of the Direction. A “non-citizen” is defined in s 5 of the Act as a person who is not an Australian citizen.
[5] See cl 6.1(2) of the Direction.
[6] See cl 6.2 of the Direction.
The Preamble to the Direction then sets out six Principles which must inform the exercise of the discretion whether to cancel the visa:[7]
Principles
1Australia has a sovereign right to determine whether non-citizens who are of character concern[8] are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
4Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
6The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[7] See cl 6.3 and cl 7 of the Direction.
[8] The term “character concern” is defined in s 5C of the Act and Annex B of the Direction.
The Direction provides that “primary” and “other” considerations must be taken into account where relevant; that “both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”; that “primary considerations should generally be given greater weight than the other considerations”; and that “one or more primary considerations may outweigh other primary considerations”.[9]
[9] See cl 8 of the Direction.
Two of the four listed primary considerations in cl 9 of the Direction are relevant in this matter:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person’s ties to Australia.
The third primary consideration is concerned with the best interests of minor children in Australia and is not relevant in Mrs Clark’s case. The fourth primary principle relates to International non-refoulement obligations and is not relevant in respect of New Zealand of which country Mrs Clark is a citizen.
Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[10]
[10] See cl 10(1) of the Direction.
(a)Effect of cancellation of the person’s visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact on Australian business interests;
(c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(i)The person’s age and health;
(ii)Whether there are substantial language or cultural barriers; and
(iii)Any social, medical and/or economic support available to them in that country.
EVIDENCE
Mrs Clark
Mrs Clark was born in New Zealand on 19 August 1972 and has remained in Australia since 6 July 1991. She was married in 1993 to Peter Clark, an Australian citizen. Her parents and her four brothers also migrated to Australia. Her parents and two of her brothers are now Australian citizens. She has 28 uncles and/or aunts, with 6 of them still living in New Zealand; 55 cousins, 20 of whom remain in New Zealand; and 13 nieces/nephews, 10 of whom remain in New Zealand. She has worked as a waitress, a nursing assistant, a receptionist, a taxi driver and as a finance broker in business with her husband.
Mrs Clark accepted as correct the criminal history provided in the National Police Certificate[11] as well as the content of the court briefs prepared in relation to the offences of burglary and assault committed on 5 June 2007 and possessing a dangerous drug committed on 30 June 2006.[12] She accepted full responsibility for her actions in relation to these offences including those relating to manslaughter, in which two boys were killed after she struck them with the car she was driving. Her knowledge of what occurred at the scene of the manslaughter offences comes mainly from what she has been told as she has limited memory of the events of the day because of her consumption of prescription drugs and alcohol. Mrs Clark also accepted the comments of the Supreme Court Judge who imposed sentence on her except that she believed that she had entered a guilty plea well before the morning of the sentencing procedure. She said that she was not a person of bad character and that the effects upon her of her imprisonment and the rehabilitation programs undertaken in prison have enabled her to take responsibility for her actions, to think things through before acting and to consider and face the consequences of her actions. Her programs have included Making Choices, Transitions and Peer Support as well as poetry writing and a first aid course. In addition, she has successfully completed some University courses including mathematics and science. She has contacted various organisations, namely Relationships Australia, Centre Care and Wesley United, who have indicated that they will provide assistance to her when she leaves prison.
[11] See below at para 20.
[12] See Exhibit 2, folios 41-44.
Although acknowledging that she was diagnosed with bipolar disorder in 2006, Mrs Clark believes that she does not suffer from that condition and that the symptoms which were thought to be related to that condition were really associated with her excessive use of prescription medication. She has taken no medication for that condition or any other health condition since she has been in custody. She believes that she will not return to taking drugs or alcohol on release from prison but, realistically, said that she could not guarantee that outcome. She said that, although she and her husband had been through some difficult times in the past, he is now very supportive of her and would continue in that way when released from custody. Mrs Clark also expects to be supported by her parents and her brothers. However, Mrs Clark said that she wrote many letters to members of her family inviting them to provide evidence in her support at the hearing. She said that she received no responses except from her husband.
Mrs Clark said that, if her visa is cancelled, she would return to New Zealand where she has some relatives although she has not maintained contact with them since coming to Australia. Importantly, she knows her husband will also move to New Zealand with her and she will be able to maintain contact with her family in Australia.
Peter Clark
Peter Clark is Mrs Clark’s husband. He provided statements and also gave evidence. He was supportive of Mrs Clark and noted that she had completed every rehabilitation course available to her while in prison. He has relocated from the Gold Coast where he and Mrs Clark lived to another city and established a home there for Mrs Clark to move to when she is released from custody. He is not employed on a full-time basis but has been driving a taxi in recent times.
Mr Clark referred to written undertakings from three organisations that will assist Mrs Clark, on release from custody, with her previous substance abuse problems, as well as with relationships and employment. That assistance will be provided in the city in which they will live although he conceded that Mrs Clark had no extended family members there.
Mr Clark described his wife as a loving, kind, generous and selfless person who was involved in a tragic accident with no intention to harm anyone. He had been aware of her drug problem and had contacted the police when he realised that she had been involved in breaking into and stealing drugs from a pharmacy in 2007. He denied that he had taken steps to prevent Mrs Clark from driving his car and denied that he had hidden the car keys from her before she drove on the day the boys were killed. On that day, he had finished a 14 hour taxi shift and arrived home at about 2am and placed the car keys on a bench close to where Mrs Clark was sleeping. He was unable to recall speaking to police on the day of Mrs Clark’s driving incident. He described a good relationship with Mrs Clark and her parents but said that his association with her brothers was strained. Mr Clark confirmed that, if his wife’s visa was cancelled, he would accompany her to New Zealand even though he had no connections there.
Mr Clark contended that Mrs Clark should be given the benefit of a second chance to contribute to Australian society and that her visa should not be cancelled for that reason.
Other evidence
Mrs Clark has no criminal history in New Zealand. A National Police Certificate[13], dated 30 July 2012, from the Australian Federal Police set out Mrs Clark’s history of convictions in Queensland as follows:
[13] See Exhibit 1, folios 48-49.
Court and date Offence Date of offence Penalty Southport Magistrates Court
20 December 1991
Remained in building without lawful excuse - $100 fine Downing Centre Local Court
13 February 1999
Enter enclosed lands without lawful excuse
Break and enter building and commit felony (steal)
- Convicted - warrant issued Southport Magistrates Court
21 January 2008
Burglary and commit indictable offence Possessing dangerous drugs
Serious assault
Assault/obstruct police officer/person in aid of a police officer
Obstruct police officer
5 June 2007 No conviction recorded. 18 months’ probation. 80 hours community service Brisbane Supreme Court
12 June 2009
Manslaughter 7 February 2008 Imprisonment 10 years.[14] Declaration of serious violent offender. Licence disqualified absolutely Southport Magistrates Court
25 June 2009
Application for revocation of probation order and community service order imposed on 21 January 2008 - Application granted. Resentenced for original offence(s). On each charge 6 months imprisonment (concurrent) [14] This was reduced on appeal to 9 years and serious violent offender declaration was set aside.
Mrs Clark pleaded guilty to the two manslaughter charges. In sentencing her, the Supreme Court Judge noted that the offences were committed during the third week of a period of 18 months probation as Mrs Clark was driving to a Centrelink office and a probation appointment. The probation period had been imposed for possession of the drug cannabis and a burglary offence, in which Mrs Clark had stolen 425 temazepan tablets from a pharmacy. The Judge also noted that Mrs Clark was not licensed to drive and stated that she knew she should not have been driving because she was addicted to pain killers and narcotics and had been involved in previous road accidents when she was driving under the influence of prescription drugs. He also noted that Mrs Clark suffered from a mental disorder, probably bipolar disorder, and that she displayed symptoms consistent with benzodiazepine disorder with prominent alcohol abuse. He referred to attempts by Mrs Clark’s husband to prevent her from driving, such as hiding the car keys. He also noted that, in the morning of the offences, she had consumed two 440 millilitre tins of bourbon and coke. His Honour continued:
Your probation appointment was at 11.00 a.m. but at that time you were still in the shopping centre, a considerable distance away. At 11.12 a.m. you rang Centrelink, probably about your 11.15 a.m. appointment. You knew that if you missed it you might have lost the benefits you were then receiving from Centrelink. You were noticed by people at the shopping centre for your drugged and affected state. You were in that state when you set out on the car journey towards Centrelink.
On the way you were seen to be driving dangerously and erratically over a distance of about two kilometres leading up to the point of impact. You were clearly trying to get to the appointment as quickly as you could. At one stage, you overtook a taxi as it continued along Government Road but you then became caught behind another vehicle. In an attempt to get past you moved to the left and to the right in your lane in Kumbari Avenue. At about 11.15 a.m. that morning you executed the manoeuvre which led to the boys deaths. In order to get past the car in front, you deliberately mounted the footpath and drove along it . You kept in a straight path for 30 minutes[15] knocking over a street sign and other objects until you fatally struck the teenage boys standing, as they were entitled to, on the footpath. At all times during this manoeuvre you had the vehicle under your control. This was not a case of momentary inattention or lapse, this was not a case where something occurred which caused you to lose control.
[15] The Queensland Police Service court brief describes a distance of “about 80 metres”: see Exhibit 2, folio 122.
The Judge described Mrs Clark as a “pharmacological nightmare” with tests revealing the presence of alcohol, valium, oxazapan, temazepan, cannabis, codeine and doxylimen. He noted that Mrs Clark proceeded a short distance along the road before parking in a car park. His Honour continued:
When the police arrived you began telling a series of lies to them. You lied to people at the scene of the impact and you lied during your record of interview. You initially said you went onto the footpath to avoid them. You said they weren’t paying attention and they were to blame. You said that you had your last drink at 2.30 a.m. That could not have been true. You said you had not had mersyndol, valium or cannabis for some time. Likewise, that wasn’t true.
The Judge described Mrs Clark as having been “seriously reckless”. He also expressed the opinion that Mrs Clark did not accept responsibility until the case against her was clearly overwhelming and noted that she had not entered a plea of guilty until the morning of trial. His Honour continued:
I accept that you now feel sorry for what you did but that is in the light of a case which was inevitably going to result in a conviction had you gone to trial. Your behaviour at the time, your lies and deceit at the time and your late plea in the face of overwhelming evidence does not allow me to regard your remorse as amounting to very much at all.
On appeal, the Court of Appeal[16] reduced the sentence to 9 years imprisonment. This was based on the limited extent to which consideration had been given to the effects on Mrs Clark of her bipolar disorder, the prospects of her rehabilitation and the utilitarian value of her guilty plea. The Court also and set aside the serious violent offence declaration. The Court noted, at [27]:
The sentence to be imposed on the applicant must recognise that the applicant unlawfully killed two innocent boys. There must nevertheless be recognition that her behaviour was irrational, rather than deliberately anti-social. It must also be recognised that her irrationality was, to some extent, the consequence of her bipolar disorder and that her moral culpability is reduced as a result, as are the claims of general and personal deterrence upon the sentencing discretion of the court.
[16] R v Clark [2009] QCA 361, per Keane JA (as His Honour was then); Holmes JA and Atkinson J agreeing.
The Court of Appeal noted Mrs Clark’s previous motor vehicle accident when she was under the effects of drugs and alcohol and expressed the opinion that she should have foreseen the possible effects of intoxication. It described Mrs Clark as “extraordinarily reckless” with the consequences of her recklessness being so grave that, even giving weight to her psychiatric disorder, her plea of guilty and prospects of rehabilitation, the appropriate sentence was 9 years imprisonment.[17]
[17] R v Clark [2009] QCA 361 at [28].
Prison reports
In evidence was Mrs Clark’s Offender Case File from the Brisbane Womens Correctional Centre where Mrs Clark has been detained since February 2008. It indicates that Mrs Clark has been compliant and cooperative in discharging her responsibilities in a diligent manner while undertaking educational programs with the University of Southern Queensland.[18] It reflects the favourable comment in the Individual Intervention Completion Report, dated 9 February 2011, from the Queensland Corrective Services.[19]
[18] See Exhibit 2, folios 5-40.
[19] See Exhibit 2, folios 53-64.
Court briefs
A Court Brief was prepared in relation to Mrs Clark’s offences in June 2007. These included the burglary of a pharmacy and assault on police which arose out of aggression displayed by Mrs Clark when police spoke with her at her home. The Court Brief also referred to finding Mrs Clark in possession of a dangerous drug (cannabis sativa) when police searched her vehicle after she had been involved in a vehicle accident in June 2006.[20]
[20] See Exhibit 2, folios 43-44.
Rehabilitation
One of the rehabilitation courses undertaken by Mrs Clark in prison was “Making Choices”. On 9 February 2011, her course supervisor completed a report on her involvement in the course which extended over a period of three months. In the detailed report,[21] Mrs Clark is described as having met all of the course requirements, gained a greater sense of personal insight and developed skills to assist her in analysing her thinking as it related to her offending behaviour. While noting that Mrs Clark gained insight into her substance abuse behaviours, the report recommended that she participate in other programs to consolidate her knowledge either in custody or in the community.
[21] See Exhibit 2, folios 53-64.
Luke Hatzipetrou
Psychologist, Luke Hatzipetrou, completed an assessment of Mrs Clark on 19 January 2009.[22] He set out Mrs Clark’s employment history and noted limited meaningful employment after 2001 when she began to experience a decline in mental functioning. He noted close relationships with and social networks in New Zealand and friendships in Australia after first arriving. As Mrs Clark’s substance abuse proliferated, Mr Hatzipetrou reported greater social isolation and fewer interactions with peers resulting in few social supports prior to her offences. Mr Hatzipetrou reported an increasing abuse of prescription medications which impacted on her occupational function, marital relationship and mental state which, in 2006/07 led to emergency admissions to hospital due to unintentional overdoses. He wrote that, usually, Mrs Clark sourced medication from a range of medical practitioners near where she lived but had also acquired them on the “black market” if unable to get a prescription and had secured medication from breaking into a pharmacy in 2007. He noted that, at that time, Mrs Clark had developed a practice of consuming two cans of bourbon every second day.
[22] See Exhibit 2, folios 65-78.
Mr Hatzipetrou’s opinion was that, under conditions of suitable intervention, Mrs Clark’s risk of reoffending is likely to be significantly reduced. He recommended that she participate in “a drug and alcohol program involving psychoeducation and development of relapse prevention strategies”. Mr Hatzipetrou noted that Mrs Clark had previously been treated for bipolar mood disorder and he considered that her description of symptoms was consistent with that disorder. His opinion was that her ongoing participation in appropriate rehabilitation programs would significantly reduce the risk of reoffending.
Dr Paul White
Psychiatrist, Dr Paul White, saw Mrs Clark on 16 January 2009 and completed reports on 20 January 2009 and 10 June 2009.[23] He wrote that Mrs Clark had advised him that psychiatrist Dr Stan Katz had diagnosed her with bipolar disorder in 2006. He considered that hospital notes reflected an “ongoing diagnostic uncertainty” as to whether she suffered from that condition. However, Dr White’s opinion was that she did suffer from bipolar affective disorder.
[23] See Exhibit 2, folios 79-84.
SUBMISSIONS
Mrs Clark submitted that she deserved to be given another opportunity to be part of the Australian community. She accepted responsibility for her actions and says she has now paid the price for her conduct by completing her sentence. She described herself as a very different person from the one who committed the offences in 2007 and 2008. In that sense, she submitted, she has benefited from her period in prison with rehabilitation programs giving her an insight into her previous behaviour. She described herself as free of drugs and expected that situation to continue after her release from prison. Mrs Clark acknowledged that there was a need to provide protection to the Australian community but submitted that she no longer represented a threat to that community.
For the respondent, Mr Sean Kikkert submitted that Mrs Clark did not satisfy the character test in the Act and that the decision to exercise the discretion to cancel her visa was the correct and preferable decision which should be affirmed. He submitted that paramount in Mrs Clark’s case was the primary consideration to protect the Australian community. He referred to Mrs Clark’s history of serious criminal conduct and addiction to prescription drugs and alcohol. He submitted that there was a likelihood that Mrs Clark’s addictive behaviour would return and lead to criminal behaviour which would constitute a continuing threat to the Australian community. He noted that Mrs Clark’s offences included non-compliance with various forms of court orders including her breach of probation. Mr Kikkert conceded that Mrs Clark had family ties in Australia and that the length of time she had been in Australia before committing offences weighed in favour of not cancelling her visa. However, he submitted that this was outweighed by the need to protect the Australian community from harm. He submitted that, if Mrs Clark returned to New Zealand, she would be accompanied and supported by her husband and be in contact with some members of her extended family.
CONSIDERATION
Primary consideration: Protection of the Australian community
In relation to the first of the primary considerations, the Direction provides at cl 9.1:
9.1 Protection of the Australian community
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also give consideration to:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
1In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
1In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In light of the Principles in cl 6.3 of the Direction, particularly (1), (2) and (3) thereof, the factors applicable to Mrs Clark in cl 9.1.1 of the Direction are (a),(b),(e) and (f) as well as those in cl 9.1.2(1)(a) and (b) thereof.
I accept Mrs Clark’s assertion that she presented at the hearing as a person different from the one who was driving the car in 2008. Clearly, she has been free of drugs and, indeed, medication, since that time. Reports of her performance in the various programs undertaken in prison and of her general conduct bespeak her changed presentation. She believes that she will remain free of drugs when released for custody.
Until 1999, no serious offences were committed by Mrs Clark and it is not disputed that she made positive contribution to Australian society in that period. From 1999 onwards, however, she demonstrated an involvement in criminal offending that increased in seriousness[24] from an offence of dishonesty in 1999, to possession of prohibited drugs in 2006, to burglary and assault in 2007 and then to manslaughter in 2008 while she was on probation. She also was involved in a serious motor vehicle accident in 2006. The victims of her most serious offences were minors[25] and a significant prison sentence was imposed on her.[26] The sentencing Judge described her as a “pharmacological nightmare”; the Court of Appeal described her as “extraordinarily reckless” and noted that her prior history of intoxicated driving should have enabled her to foresee the danger of driving in that state.
[24] See cl 9.1.1(1)(f) of the Direction.
[25] See cl 9.1.1(1)(a) and (b) of the Direction.
[26] See cl 9.1.1(1)(e) of the Direction.
The Principles in the Direction provide that some forms of criminal offending, or the harm it may cause if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable.[27] It notes that even strong countervailing considerations may be insufficient to justify not cancelling a visa. I am satisfied that those principles apply to Mrs Clark. Her current drug free presentation reflects an absence of drug and alcohol ingestion. However, this reflects her detention in the closely controlled prison environment for almost five years. Mrs Clark believes that she will continue to abstain from drug taking but, clearly, her intentions and resolve have not been tested in the absence of prison constraints. I note that Mrs Clark’s offences include non-compliance with various forms of court orders including her breach of probation when she was given a conditional release into the community. She breached her probation by driving unlicensed, intoxicated and in the manner that she did on 7 February 2008. There is no medical evidence of the prospect of Mrs Clark remaining free of drugs and/or alcohol although the psychologist, Mr Hatzipetrou, and the supervisor of the Making Choices program have opined that Mrs Clark would benefit from further involvement in rehabilitation programs. However, the Direction provides that visa cancellation decisions should not be delayed pending further rehabilitation prospects.[28] I also note that the written undertakings of support from the three organisations identified by both Mr and Mrs Clark were not provided at the hearing.
[27] See cl 6.3(3) and also cl 9.1.2(1) of the Direction.
[28] See cl 9.1.2(1)(b)(ii) of the Direction.
As I understand it, the town to which Mrs Clark will relocate to is remote from her family and close personal support will be provided by her husband. Clearly, that was also the case prior to the events of 2008 when that support was not sufficient to properly guide Mrs Clark’s substance abuse and dangerous behaviour. On the material before me, I am satisfied that there is a risk that Mrs Clark may relapse into drug taking with resultant motor vehicle usage. Even where that risk is relatively low, which is not necessarily the case here, the need to protect the Australian community from the prospect of consequences of the kind which occurred in 2008 leave me satisfied that the first primary consideration weighs heavily in favour of cancelling Mrs Clark’s visa.
Primary consideration: Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at cl 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
1Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mrs Clark arrived in Australia as an adult in 1991. She remained free of conviction for serious offences until 2008 when she was before the Courts for her conduct in 2006 and 2007. Her psychiatric problems commenced earlier and she was hospitalised in 2006 for drug overdoses and diagnosed with bipolar disorder. Mr Hatzipetrou recorded limited meaningful employment after 2001 and a decline in mental functioning from that time. There is no material to suggest that Mrs Clark was not making a positive contribution to the Australian community for the period from 1991 to 2001, some 11 years out of a total of 23 years in Australia. The significance of any such contribution is lessened[29] by her conviction for a minor offence in her first year in Australia and for convictions in 1999.
[29] See cl 9.2(1)(a) of the Direction.
Mrs Clark has maintained close contact with some of her family members who migrated to Australia from New Zealand. These include her parents and four brothers. There are also uncles, aunts and cousins in Australia with whom she has not maintained contact. Mrs Clark’s attempts to gain support at the hearing from her family members was unsuccessful. Apart from her husband, no evidence was provided by Mrs Clark from other family members, from Australia citizens, from Australian permanent residents or from other people who have an indefinite right to remain in Australia.[30] Similarly, no evidence was provided by Mrs Clark of persons with social or employment links to her.
[30] As referred to in cl 9.2(1)(b) of the Direction.
In accordance with the Principles in cl 6.3[31] and cl 9.2 of the Direction, I am satisfied that, while Mrs Clark may be seen as having made a contribution to the Australian community prior to 2001, the weight attributable to that factor is substantially reduced by her criminal offences in and after that period and the limited extent to which she was able to show strong and long-lasting links with persons, apart from her husband, in Australia including her immediate family who declined to provide evidence in support of her circumstances. The second primary factor, weighs in favour of the cancellation of Mrs Clark’s visa.
[31] In particular cls 6.3(4) and (6).
Other considerations
A non-exhaustive list of other considerations is provided in cl 10 of the Direction.[32]
[32] See para 11 (above).
One such factor is the effect of visa cancellation on Mrs Clark’s immediate family. Mrs Clark has her parents and four siblings in Australia. She also many has many uncles, aunts and cousins in Australia. Her evidence was that some of these are Australian citizens. There is no evidence of the impact which will be felt by those family members, whether Australian citizens or not, in the event that her visa were cancelled. Clearly, the effect will be significant in relation to Mr Clark. However, he has indicated that he would accompany Mrs Clark to New Zealand. He is not in full-time employment at the moment but it is likely that he would be able to continue with his current part-time work as a taxi driver in New Zealand.
It has not been suggested that there would be any impact on Australian business interests if Mrs Clark’s visa were cancelled. Similarly, no evidence was before the Tribunal of any impact of a decision on the families of the victims of Mrs Clark’s offences. She also has uncles, aunts and cousins in New Zealand though she has not been in contact with them since she came to Australia. Mrs Clark is 40 years age. No health concerns have been expressed by Mrs Clark though there has been a diagnosis of bipolar disorder. Dr White described an “ongoing diagnostic uncertainty” in that regard but, significantly, Mrs Clark’s belief that she does not suffer from the condition is consistent with her evidence that she has been able to cease all medications, including those relating to bipolar disorder, for almost five years.
It is not in dispute that there are no language or cultural barriers to Mrs Clark returning to New Zealand or that a similar level of social, medical and economic support would be available to her in New Zealand as would be applicable in Australia. I am satisfied that there are no barriers to Mrs Clark establishing herself in New Zealand and maintaining a basic living standard such as is generally available to New Zealand citizens.
In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the other considerations weigh neutrally in relation to the cancellation of Mrs Clark’s visa.
CONCLUSION
Having considered the relevant primary considerations and relevant other considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether those considerations, on balance, favour cancellation of the visa.[33]
[33] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the two relevant primary considerations, I am satisfied that the protection of the Australian community is the more significant in Mrs Clark’s case. The nature and frequency of Mrs Clark’s criminal conduct, and the likelihood of her re-offending, is in conflict with an objective of the Act; that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[34] I am satisfied that the first primary consideration weighs heavily in favour of cancellation of the visa, that the second primary consideration weighs in favour of cancellation of the visa; and that the other considerations bear neutrally on the issue. On balance, I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that Mrs Clark’s visa be cancelled pursuant to s 501(2) of the Act.
[34] See cl 6.2 of the Direction.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 30 January 2013
Date of hearing 18 January 2013 Applicant In person Solicitors for the Respondent Mr Sean Kikkert
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