THE APPLICANT and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 242
[2013] AATA 242
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0447
Re
THE APPLICANT
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 April 2013 Place Brisbane The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class BF Transitional (Permanent) Visa – Cancellation – Philippines citizen – Entry to Australia at age 16 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
Romanov and Minister for Immigration and Citizenship [2013] AATA 63
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390The Applicant and Minister for Immigration and Citizenship [2013] AATA 6
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
THE APPLICATION
The applicant applied to the Tribunal for review of a decision, dated 21 January 2013, of a delegate of the Minister for Immigration and Citizenship (“the respondent”) cancelling his Class BF Transitional (Permanent) Visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
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), namely that the applicant has been sentenced to a term of imprisonment of 12 months or more.
It is not disputed that the applicant has been sentenced to a term of imprisonment of more than 12 months or that he has a substantial criminal record under s 501(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[1] (“the Direction”), under s 499 of the Act, which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act.
[1] Direction No. 55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.
[2] 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.[3] 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.[4] The Preamble also provides General Guidance, including the following:[5]
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.
[3] 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.
[4] See cl 6.1(2) of the Direction.
[5] See cl 6.2(i) of the Direction.
The Preamble to the Direction then sets out six Principles which must inform the exercise of the discretion whether or not to cancel the visa:[6]
1.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern[7] 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.
(2) A 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.
(3) In 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.
(4) Australia 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.
(5) Australia 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.
(6) The 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.
[6] See cls 6.3 and 7 of the Direction.
[7] 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.[8]
[8] See cl 8 of the Direction.
Three of the four[9] listed primary considerations are relevant in this matter:[10]
(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; and
(c) The best interests of minor children in Australia;[11]
…
[9] It is not in dispute that the fourth primary principle (International non-refoulement obligations) is not applicable in respect of the Philippines.
[10] See cl 9 of the Direction.
[11] See cl 9(1). A “minor” is defined in s 5 of the Act as a person is who less than 18 years old.
Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[12]
[12] See cl 10 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
Criminal history
The applicant has a criminal history in Queensland, New South Wales and South Australia. A National Police Certificate, dated 25 July 2012 from the Australian Federal Police, sets out his history of involvement with Australian Courts as follows:[13]
[13] See Exhibit 1, G-documents, pp. 133-134
Court
Offence
Penalty
Fairfield Local Court
28 April 1998
Enter Inclosed Lands of any Person Without Lawful Excuse
Fined $250
Southerland Local Court
25 February 1999
Drive Unlicensed
Fined $200
Drive Conveyance Without Consent
Community Service Order for 60 hours
Kogarah Local Court
30 May 2000
Destroy or Damage Property
Fined $500
Pay compensation $365.Downing Centre Local Court
21 March 2001
Goods on Personal Custody Reasonable Suspected Being Stolen
Fined $500
Southport Magistrates Court
6 December 2001
Enter or in Premises With Intent to Commit Indictable Offence
Wilful Damage (4 charges)
Stealing (4 charges)
Receiving Property Obtained in Queensland
Breach of Bail Granted Undertaking
One penalty imposed: without conviction. Fined $1,200. Pay restitution $120 Southport Magistrates Court
21 January 2002
Breach Bail Granted Undertaking
Without conviction.
Community Service Order for 70 hoursWhyalla Magistrates Court
19 August 2004
Unauthorised Person Drive Motor Vehicle on Road
Convicted fined $200 Whyalla Magistrates Court
18 October 2006
Common assault
Without conviction fined $200
Whyalla Magistrates Court
18 May 2007
Unauthorised Person Drive Motor Vehicle on Road
Drive Unregistered Motor Vehicle on Road
Drive Uninsured Motor Vehicle on Road
Warrant for arrest issued Southport Magistrates Court
4 January 2008
Commit Public Nuisance
Possession of a Knife in a Public Place or a School
Obstruct Police Officer
One penalty imposed: Without conviction. Fined $900 Southport Magistrates Court
22 June 2009
Trespass-Entering or Remaining in Dwelling or Yard
Convicted. No penalty imposed
Southport Magistrates Court
22 July 2009
Breach of Order – Respondent Present in Court
Fined $450
Southport District Court 6 July 2010
Acts Intended to Cause Grievous Bodily Harm or Transmit Serious Disease
Imprisonment: 8 years, declare that time spent in pre-sentence custody be deemed as time already served under this sentence 511 days.
The applicant
The applicant has been in Australia since he migrated here in June 1995 at the age of 16 years. He attended school in the Philippines until age 15 years where English was the language used. He had not been permitted to socialise outside of school or with neighbours and the English language was the means of communicating. In Australia, he stayed with the mother in Sydney and attended school there before moving to Queensland in 1998 where he stayed with relatives and continued his schooling. He travelled to Sydney to find his mother and, until 2001, lived “on the streets”, sleeping in abandoned properties and stealing food from shops. He then returned to Queensland and, again, he lived on the streets and met the partner in 2001. They lived with his aunt for a period and then with the partner’s family. Their daughter was born in 2003. In 2005, they moved to South Australia where they stayed with the partner’s relatives. The partner missed her Queensland family and returned to Queensland and the applicant followed her some months later.
The applicant was employed in many different jobs from about 1999, though he agreed that there were long periods when he was not in work. Most of his jobs lasted for a period of months and ceased for various reasons, such as the job coming to an end, not being paid a sufficient wage or, after he was cohabiting with the partner, because she wanted to relocate. His jobs included unskilled work such as shelf-filling in supermarkets but also jobs for which he undertook on-the-job training such as door-making, cooking, installing air-conditioning units, powder coating, landscaping and safety officer work. He received Centrelink benefits on some occasions but most of his work came to him after “door knocking” individual employers. While living at the Gold Coast, he engaged in church-oriented community work such as preparing and providing meals for the homeless as well as accompanying aged people in park outings.
The applicant said that his main goal after leaving prison was to provide assistance to his mother because of her difficulty in coping with her health problems. He was hopeful that she would be able to move to Brisbane and live with him, the partner and the daughter. However, he accepted that she may not wish to relocate, in which case he would move to Sydney, hopefully with the partner and daughter. He understood that the partner and daughter may stay in Brisbane until he finds work, in which case he would visit them whenever he could. He said that, in the absence of remunerative work, he would undertake voluntary work because he believed this had the potential to lead to paid employment.
The applicant described a close relationship with the daughter before he went to prison. He has continued this through phone calls, the exchange of letters and, on special occasions such as birthdays, cards. He has received photographs and school progress reports. As a result of his paid work in prison, he has also been able to forward money to her in the amount of $100 per month.
The applicant believes that he was now well equipped to avoid the types of violence in which he had been involved before he went to prison. This was because of the programs he had undertaken in prison, in particular “Making Choices” and “Getting Smart”. One aspect of this was his understanding of the need to avoid alcohol consumption, which had been a problem for him in the past. He has learned to recognise stress and anxiety triggers in personal and other relationships and would be able to calm down and step back or walk away from potential problems and, if necessary, seek assistance or contact police. The applicant said that he had maintained a good record while in prison and, in addition to the programs he undertook, was able to maintain employment in various forms for which he received remuneration. He advised that he received payment of $30 to $40 per week in jobs such as cleaning, as a kitchen hand or as, currently, a team leader for food industry.
Two incidents which appear in the applicant’s prison records were referred to him. The first was being found in possession of a dictionary which he had removed without permission from the prison library on 19 June 2009.[14] He said that he needed it to assist him in a course he was doing and thought that he “could get away with it”. He said that he had apologised for his action. The second was on 23 September 2011 when, in a session with a female corrections officer during which he read a report about his role in the Making Choices program, he noted a reference to a “drug and alcohol abuse” program and asked the officer if he would be required to undertake it. The officer’s advice that it was recommended elicited a response from the applicant which caused the officer to fear for her safety, to exit the interview room and return with another officer. The report of the incident reveals that the applicant had calmed down when she returned. The applicant said that he had not intended to alarm the officer and, initially, said that she had not left the room at all.[15] The applicant explained that he had not wanted to take a drug course because of his concern about associating with drug takers.
[14] See Exhibit 2, Additional G-documents, p. 285.
[15] See Exhibit 2, Additional G-documents, pp. 297-298.
The applicant accepted as correct the criminal history set out above.[16] However, in the Statement of Facts, Issues and Contentions lodged on behalf of the applicant, and which he agreed he had read, the applicant’s versions of events relating to his offences are set out in the following way:[17]
[16] See para 11 (above).
[17] See Exhibit 3.
6 July 2010
The applicant was suspicious of the victim’s involvement in two of the applicant’s cousins going missing. Prior to the assault, the victim met the applicant and his co-accused outside the premises where they had all been drinking alcohol. The applicant had invited the victim outside in order to answer questions about his missing cousins. The co-accused did most of the talking and the victim denied everything. The co-accused raised his voice and the victim responded by kicking the co-accused in the groin and placing the co-accused in a headlock. The applicant went to the co-accused’s aid and pulled the victim off him. The victim fell to the ground. The applicant believed they were acting in self-defence up to that point. The applicant then lifted up a large rock and hit the victim over the head. The applicant and the co-accused left the victim there.
22 July 2009
The applicant called the police after the partner stabbed him with a sharp object resulting in the applicant being arrested and charged with domestic violence.
22 June 2009
This was an abandoned building.
4 January 2008
The applicant was hit from behind, rendered unconscious and robbed. On being told that others were coming after him, he requested protection from a friend who gave him a knife. Police came, pushed him to the ground, searched him, disbelieved him and bashed him.
18 May 2007
The applicant was riding a small motor cycle for which he was unaware a licence was required.
18 October 2006
A home invasion by a group of men caused the applicant to ring police. The applicant confronted the men and was pushed by one of them. The applicant pushed back. Police arrived and believed the men’s version of events rather than that of the applicant.
19 August 2004
The applicant drove to a work interview in a car without a licence as he had no one to drive him.
21 January 2002
The applicant was unable to recall but believed he missed a court date.
6 December 2001
The applicant was unable to recall the details.
21 March 2001
The applicant was unable to recall the details.
30 May 2000
The applicant broke a door on learning that his then girlfriend had been raped.
25 February 1999
The applicant was unable to recall the details.
28 April 1998
The applicant was unable to recall the details.
In his evidence, in relation to the charge for which he was imprisoned, the applicant confirmed that he had not intended to harm the victim but acted in order to defend his co-accused who had been kicked in the groin by the victim. He said that he spoke to the victim about his cousins and received an aggressive response. This angered the applicant who placed the victim in a headlock, dragged him a few metres and pushed him into bushes. There followed a short, heated discussion between the victim and the co-accused before the victim kicked the co-accused in the groin. The applicant heard the co-accused call for help and punched the victim. He then told the victim to sit on a pile of rocks. He asked the victim further questions but was given no information and the applicant then hit the victim on the side of the head with a rock. He said that the victim was in a sitting position when he hit him and then fell to the ground. The applicant denied that he ceased a second blow with a rock because of the co-accused’s intervention and said that he had not intended to hit the victim again. He said: “There is a certain moral which I don’t cross!” The applicant agreed that he had lied to police about the event and that he did so because he was scared.
In 2012, a Personal Details Form was completed by the applicant in which he advised that his relatives in Australia were two aunts, two nieces, 14 cousins and one grandparent.[18] He described a strong relationship with his cousins but said that only two of them had remained in contact with him.
[18] See Exhibit 1, G-documents, pp. 41-48.
While agreeing that he had been unemployed for long periods before he went to prison, the applicant said that he was confident that he would find full-time work if released from custody. He believed that he would be able to sustain this and be able to provide financial support for his partner, daughter and mother. He said that he would contact those who employed him previously in an effort to get work. In this, he said that he had the support of his family as well as groups such as the Catholic Prison Ministry. The applicant said that, on leaving prison, he would not re-associate with former friends.
A Sentence Management report, dated 11 July 2012, made the following comments on the applicant:[19]
no breaches of discipline; no positive drug tests; participated in numerous educational and vocational courses; has no further rehabilitation courses to complete; working in the main kitchen and is reported to be a good worker; only irregular visits; a self-harm history dating back to May 2009 but no recent episodes.
[19] See Exhibit 1, G-documents, p. 137.
The applicant said that he would have difficulty adjusting to life in the Philippines. He has had no contact with relatives who may be living there since coming to Australia. These include two sisters. However, he understood that one of them was now living in Canada. He knew of no other relatives in the Philippines.
The applicant agreed that he and the partner had experienced their difficulties in the past but he believed that she had matured a lot since he had been in prison and had been supportive of him. She had maintained contact with him and had visited him in 2012 with the daughter. He proposed marriage to the partner on the day when his solicitor visited him in prison. He agreed that he thought that a marriage arrangement would help him to avoid deportation but that this was not the reason for proposing marriage as there were several other reasons for doing so. These included the partner’s increased maturity level, her genuine wish to marry him, a sense of trust which had developed between them and the ability of them to share any problems and discuss them. Despite those matters, the applicant changed his view on marriage during the hearing. This was after he heard the partner say in her evidence that she would not travel to the Philippines to marry him if her were deported. He said that changed everything for him and he foresaw that he and the partner could only be friends from now on and that he could only live with her on that basis.
The applicant said he was not aware of a domestic violence order taken out against him in February 2003 and which continued until 2005.[20] He said that he had been living with his aunty at that time and that she kept making up stories about him. He denied harming her and could not recall raising his voice to her. He agreed that he damaged a door at her premises when she slammed it on him and he reached out to prevent it from hitting him. He said that this had caused damage to the insect screen. He denied that he had “pulled” the door to damage it.
[20] See Exhibit 2, Additional G-documents, pp. 6-7.
The applicant agreed that the partner had taken out a domestic violence order on 24 April 2007. He said that, on that occasion, he and the partner had argued and he had cut his hand on a glass. A neighbour had called police to the premises and the applicant was charged with domestic violence.[21] He said that both he and his partner had been at fault.
[21] See Exhibit 2, Additional G-documents, pp. 35-38, esp. p. 37.
The applicant agreed that he had been involved in an incident with a knife on 1 January 2004. He referred to a “home invasion” in the form of a car doing “burn-outs” in his garage. This caused smoke from the tyres to enter the house. The applicant asked the two men in the car to stop and to leave. Instead, they exited the vehicle and dragged him to the ground. He then went to the house and returned with a knife with which he stabbed one of the men in the arm. He said that it was self-defence and that their weapon was the car. He denied that police had taken him to the police station and said that he voluntarily went to the police station about that incident about two hours after it happened.
The applicant agreed that he had gone to the partner’s residence and had been involved in an incident of domestic violence there in January 2009.[22] In his evidence, he said that he found a used condom on the bathroom floor and he told the partner that if she had men to the house she should not do so when the daughter was around. He said that the partner had reacted angrily to that proposition, yelling and swearing at him. She hit him and he fell to the floor hitting his head a few times on the toilet. He said that he then retaliated by pushing her head into a wall. He could not recall hitting her in the face but recalled kicking her with his steel-capped boots, though he could not recall whether she was conscious afterwards. He said that the daughter had been present and witnessed the incident and that she hugged him and told him to stop.
[22] See Exhibit 2, Additional G-documents, pp. 122-124, esp. p. 123.
The Statement of Facts, Issues and Contentions[23] described the applicant, at the time of the attack on the victim, as having a sense of internalised anger of 13 years duration because, in part, of his belief that the victim had sexually interfered with two of his cousins. This was put to the applicant, at which point he became distressed and tearful and stated that the incidents had not happened.
[23] See Exhibit 3.
The Partner
The applicant’s partner completed an undated statement[24] and gave evidence. She has lived, from time to time, in a de facto relationship with the applicant since they met in 2001. They have a daughter who was born in 2003. She described her relationship with the applicant as an “on and off” one. They have lived with relatives, including her parents, and also in rented premises in Queensland. They also stayed for a period with her relatives in South Australia before she returned with her daughter to Queensland. At that time, the applicant remained in South Australia because he had employment there but he returned to Queensland when he lost his job.
[24] See Exhibit 3, attachment 25.
In the years 2005 and 2006, her relationship with the applicant “hit rock bottom” with much disputation between them about a range of matters including the custody arrangements for their daughter. Eventually, they agreed to share custody and they resumed their de facto relationship in 2006. Again, this was characterised by disputation and separation. Thereafter, they did not live together but remained good friends with the applicant making regular visits to the daughter. In January 2009, the partner was injured after a violent assault on her by the applicant which involved her being pushed into and damaging a wall as well as being rendered unconscious by kicks to her head by the applicant who was wearing steel-capped boots. In her evidence, she said that she hit the applicant first and that he then responded. She agreed that their daughter had been present at the time.
The partner has maintained contact with the applicant while he has been in prison by exchanging letters and photographs and by telephone. She visited him with the daughter on four occasions in 2009 and also on the daughter’s birthday in 2012. She agreed that, since 2009, most of the contact between the applicant and the daughter and with herself had been through telephone or mail. The partner described herself as having matured since she and the applicant were together before 2009. She has rekindled her friendship with him in recent times, is in love with him and has discussed marriage although no marriage proposal has been made to her by the applicant. She accepted that there had been serious domestic violence between them in 2006 and 2009 and that he had been the subject of a domestic violence order but she expressed confidence that they would be able to deal with troublesome issues better in the future. However, she said that she would not contemplate getting married to the applicant if he were deported to the Philippines.
The partner said that the applicant had been attentive to the daughter’s needs at all times when they were together, sharing leisure activities with her, providing financial assistance when he was able to do so and assisting her with school work. She recalled an occasion when the applicant took the daughter to a church service. She also advised that the applicant had been involved in community activities from time to time though she was unaware of what these were. She said that the daughter missed her father and was looking forward to his leaving prison so that they could be together.
The partner said that she had lived in a de facto relationship with a man other than the applicant during 2010 and 2011 and that the man and the daughter did not get on well. She said that he had disapproved of her having contact with the applicant and destroyed letters to her written by the applicant. During that association, for about 12 months, the daughter lived with the partner’s sister and the partner saw the daughter on some weekends and on school holidays.
In her undated statement, the partner wrote that there was no family support in the Philippines for the applicant and that he would experience hardship if deported. She wrote that both she and the daughter would miss him greatly in that case. She indicated that she would suffer financial hardship if the applicant were deported because he had always provided some financial assistance to her and the daughter. She expressed belief that, if he were permitted to remain in Australia, he would not reoffend in the manner he did in the past. She also advised that, because the daughter is expecting the applicant to come “home” soon, she would be greatly affected if he were deported.
The daughter
The daughter completed an undated statement[25] and gave evidence. She expressed her love for her father and her wish for him to be able to re-engage in the leisure activities that they had previously enjoyed together, such as fishing, camping and shopping. Her oral evidence was brief as she was upset by her circumstances but she did indicate that she had no recollection of her father from before he went to prison.
[25] See Exhibit 3, attachment 26.
The applicant’s mother
The applicant’s mother (the mother) completed statements on 22 March 2013[26] and 26 March 2013[27] and gave evidence. She has been in Australia since 1986 and is an Australian citizen. Before the applicant came to Australia in 1995, the mother sent money to her sister, with whom the applicant was living in the Philippines, for his continuing education. She described this as being in the best schools where English was spoken exclusively. On his arrival in Australia, the applicant lived in Sydney with her and attended school. He then moved to Queensland where he went to school for a short time before returning to Sydney to live with friends. After that, the mother lost touch with the applicant for three years until he was imprisoned.
[26] See Exhibit 3, attachment 30.
[27] See Exhibit 4.
The mother has suffered illness since 2003 when she underwent surgery for breast cancer and has since had to cope with orthopaedic injuries sustained in motor vehicle accidents. She described herself as being shocked when she was advised of the applicant’s imprisonment. She continues to take medication for her cancer and also for pain relief. She suffers from depression and needs assistance with her care and is hopeful that the applicant will remain in Australia to assist her in that regard.
The mother said that the victim who was assaulted by the applicant had been a family friend. She wrote that the reason for the applicant’s assault was that the victim had sexually assaulted two of her nieces (cousins of the applicant) and that the applicant learned of this shortly before his assault on the victim. She recalled a conversation with the victim when he advised her that he had killed people in the past but also that he said that he had acted that out in a scene from a movie.
The mother expressed the wish that the applicant remain in Australia and indicated that she was willing for the applicant, the partner and the daughter to live with her in Sydney when released from custody. The mother described the applicant as a loving father with a close relationship with the daughter and whom he has supported financially through her life. In her working life, the mother had been a “head hunter” and she believed that this would assist the applicant in finding work. She said that he would also be able to spend some time caring for her. She referred to the difficulty in travelling to visit her son in prison because of her health concerns.
The mother said that there would be no one to provide assistance to the applicant if he were returned to the Philippines. She described former family connections being non-existent in that many had moved from the Philippines to places like Canada, including her two other children. On the other hand, she referred to a strong network of family members in Australia who would provide support for him.
The mother believed that she has always been close to the applicant. She became aware of domestic violence between the applicant and the partner when the partner phoned her about it. She understood that they are now in a close relationship again and will marry.
Grandparents
The applicant’s step-grandfather and grandmother made statements on 22 March 2013.[28] They are the parents of the mother. The step-grandfather referred to their and the mother’s health problems and the prospect of the applicant being able to provide assistance to them on release from prison. He expressed the wish that the applicant be allowed to remain in Australia. The grandmother also described the level of assistance that the applicant would be able to provide to his mother and daughter if he were allowed to remain in Australia.
[28] See Exhibit 3, attachments 21 and 22.
Cousins
In evidence were two letters, dated 23 March 2013, written by female cousins of the applicant to Queensland police.[29] They were born in 1990 and 1994, respectively. The letters are virtually identical and identify the victim as a person who sexually interfered with them in 2002. Those cousins also completed statements, dated 16 March 2013, indicating that they would be able to provide support for the applicant on release from prison.[30]
[29] See Exhibit 3, attachments 2 and 3.
[30] See Exhibit 3, attachments 23 and 24.
Another cousin completed a statement on 22 March 2013.[31] She lives west of Sydney and has had a close association there with the mother. She advised that the applicant was needed to provide assistance to the mother who had expressed fear that she would not see him again if he were deported. She wrote that the mother’s health problems would prevent her from travelling to the Philippines to visit him there. She indicated that she was willing to provide support for the applicant on his release in Australia. She also advised that she had met the daughter for the first time in 2012 and noted she was very emotional about the applicant and the prospects of their being together in the future.
[31] See Exhibit 3, attachment 31.
The partner’s mother and stepfather
The partner’s mother completed a statement on 11 February 2013.[32] She has known the applicant since 2001 and was confident that he would be able to make a positive contribution to the Australian community if allowed to remain here. She referred to the “up and down” nature of the relationship between the applicant and the partner but believe that they retained strong feelings for each other and that there was a possibility of them getting married. She described the special bond that had developed between the applicant and his daughter and expressed concern for her if that were broken by the applicant’s deportation. She wrote that the applicant had maintained contact with the daughter during his imprisonment and said that she had taken the partner and daughter to visit him in August 2012. She said that the applicant would be of great assistance to the partner and the daughter who had been struggling financially with living costs including those associated with the daughter’s schooling.
[32] See Exhibit 3, attachment 27.
The partner’s stepfather completed a statement on 11 February 2013.[33] He described the support that the applicant would be able to give the partner if he remained in Australia. He also described the continuing relationship between the applicant and the daughter during his imprisonment and said that deportation would have a devastating effect on the daughter. He also considered that the applicant would be able to make a strong contribution to the Australian community and that he would have no support from family and others if he were deported to the Philippines.
[33] See Exhibit 3, attachment 28.
Dr T
Dr T completed reports on 25 March 2013.[34] He has been the mother’s treating doctor since 2006. He has also been treating her parents. He referred to her treatment for breast cancer and chronic pain in her back and neck as a result of a motor vehicle accident. He also identified diabetes, hypertension and dyslipidaemia as well as depression and anxiety. Dr T advised that the applicant’s step-grandfather was suffering from dementia and is also quite deaf. He said that the applicant’s grandmother’s main problem is her loss of vision as well as pulmonary disease.
[34] See Exhibit 3, attachments 18 and 19.
Sentencing remarks
Judge Wall QC, in the District Court on 6 July 2010,[35] made the following sentencing remarks in relation to the assault on the victim which occurred in December 2008:
[35] See Exhibit 1, G-documents, pp. 138-142.
… this is an extremely serious offence, which has had devastating consequences for the complainant, [the victim]. Whatever problem you may have had with [the victim] in the past before you attacked him, could not, in any way, shape or form justify the attack by you upon him, which was also participated in by [the co-accused]. Whilst somewhat spontaneous and not premeditated, the attack was nevertheless, persistent.
The complainant was first struck from behind on the footpath near the Marriot Hotel by you. You grabbed him around the neck, and threw him off the footpath. He fell to the ground. As soon as he regained his feet, he went back towards Ferny Avenue where he was met by [the co-accused], who was a few steps behind you. He struck [the co-accused] in the groin. That, I find, was a defensive blow. He was then punched by [the co-accused] two or three times to the head with a closed fist.
You then took the complainant around his neck and dragged him some 20 to 30 metre to Jarraparilla Cove. With a firm grip on him, you led him to the cove. [The co-accused] followed. You then questioned him about the whereabouts of your cousin. You were not satisfied with his answers. You struck him to the face with a closed fist a number of times. [The co-accused] punched him to the face and head a couple of times. [The victim] fell to the ground as a result of those punches and [the co-accused] punched him a further two times to the face and head. You then picked up a rock – it was a large rock – and you struck the complainant to the side of his head once. You asked him some further question, but he did not respond. You persisted in your questioning him. You picked up another rock, drew it back over your head. [The co-accused] reacted, saying “No. That’s it. I’m out of it. I don’t want to be part of it”. You both left the complainant on his back on the rocks.
At 5.30 in the morning, he was found by passers-by, lying at the water’s edge, face-down in the sand. During the attack, by you and [the co-accused], he suffered serious head injuries, leading to brain damage and a permanent impairment of his cognitive and functional functions.
The brain damage which is the grievous bodily harm, could have been caused by blows to the head or the rock. You and [the co-accused] are equally responsible for causing grievous bodily harm. The difference between your case and his is that you intended to.
The complainant, [the victim], now has significant cognitive and functional deficits. He has issues with slow processing, impaired attention, decreased problem solving, poor recall and memory. His head injury has been described as moderate, but it has had serious and permanent consequences for him. He is independent as regards the basic activities of daily life, but is dependent on others for assistance in many things, such as finances. His attention has been impaired, and he has been left with decreased problem solving skills and poor memory and recall. This situation will not improve. He is now, since this attack, unable to work.
Now, you and [the co-accused] are responsible for that state of affairs. You initially did not cooperate with the police. You have, however, pleaded guilty to this offence, and that plea of guilty is an indication of remorse on your part, and it has assisted in the administration of justice.
The prison statements and certificates which have been tendered indicate the extent to which you have taken steps towards rehabilitation. The reference which was tendered by Mr Sloss indicates the extent to which this type of conduct would appear to be out of character for you.
…
I have had regard to your criminal history, but I accept that that does not in any real sense include offences of violence, and your conduct in this case would appear to be inconsistent with your previous offending.
Prison Courses and Programs
The applicant has undertaken a range of courses and programs while in prison. These include Path of Freedom; Stepping Forward – Post Separation Co-accused-operative Parenting Program; a Salvation Army Program; Alcoholics Anonymous Group Meetings; Making Choices Program; Getting Smart Program; Maintenance Worker (Medical) work; Work Readiness, and Literacy Numeracy & Career Preferences; Pretraining in Construction; Emergency Medical Service First Response; Introductory Vocational Education; CPR Performance; Basic Health Care; Food Handler Training; Year 10 Core Mathematics; Literacy; Financial Budgeting and Literacy Worksop; Transitions Program; and Transport and Logistics (Warehousing and Storage).
Marriage Notice
In evidence was a Notice of Intended Marriage between the applicant and the partner, signed by each of them and received by the Parramatta Office of the NSW Registry of Births Deaths and Marriages on 21 March 2013.[36]
[36] See Exhibit 3, attachments 14-16.
Queensland Police Service
Police records set out the history of domestic violence orders against the applicant. These were served on him on 8 June 2003, 24 April 2007 and 26 April 2007.[37]
[37] See Exhibit 2, Additional G-documents, pp. 6-7.
Police reports on the assault by the applicant on the partner in January 2009 advise that the applicant went to the partner’s premises at 10.15 pm and accused her of sleeping with another man.[38] There ensued an argument which became increasingly worse and the partner went upstairs to the bedroom. The applicant followed her where he pushed her into a wall, damaging it and causing profuse blood flow from a cut in her mouth. A witness present at the time called the police. The applicant, who was wearing steel-capped boots, then kicked the head and shoulders of the partner. The applicant took the partner’s mobile phone and left the premises. The report noted that the applicant was in breach of a domestic violence order at the time. On 1 February 2009, the applicant participated in a record of interview where he agreed that he had pushed the partner with excessive force into the wall and had punched her in the face, but asserted that it was an accident. He said that she had run at him and had “[run] onto the end of his closed fist”.[39]
[38] See Exhibit 2, Additional G-documents, pp. 122-124, esp. p. 123.
[39] See Exhibit 2, Additional G-documents, p. 123.
On 1 January 2004, the applicant was involved in a stabbing incident. The police report[40] referred to an argument between the applicant and a male person during which the applicant ran into his premises and returned with a knife, some eight inches in length. He then charged and stabbed the male person causing a “3+ inch” wound to his arm which required treatment and stitching. When police arrived, the male person was lying on the ground. The report continues:[41]
Whilst uniform crew were at the scene, suspect offender re-attended and was subsequently detained and transported to Nerang Police Station for further investigation…
[40] See Exhibit 2, Additional G-documents, pp. 41-45.
[41] See Exhibit 2, Additional G-documents, p. 43.
The report further indicted that on 12 January 2004 when police again went to the premises where the incident occurred, the applicant had moved out leaving no forwarding address.[42] Police were able to contact the applicant by his mobile phone but were unable to locate him. On 2 April 2008, the male person advised that he did not wish the complaint to go any further.[43]
[42] See Exhibit 2, Additional G-documents, p. 43.
[43] See Exhibit 2, Additional G-documents, p. 45.
Another report referred to an incident on 24 April 2007. Police were advised that the applicant and the partner had been arguing and the partner had asked him to leave her premises. Verbal abuse followed and the partner removed herself to her bedroom and closed the door. The applicant continued with verbal abuse and the partner heard a loud noise. On opening the door, the partner noted a hole in the wall. She proceeded to the lounge room where the applicant had a glass in both hands. Concerned for her safety, the partner attempted to slap the glass from the left hand of the applicant. The glass shattered. The applicant continued to abuse the partner who left the room to avoid further confrontation. The report noted that the partner described domestic violence as being “an entrenched part of their relationship and occurs on a regular basis”. It was also noted in the report that “no drugs or alcohol were involved”.[44]
[44] See Exhibit 2, Additional G-documents, p. 13 and pp. 35-38, esp. p. 37.
A police report described an incident in May 2003 in premises where the applicant and, it seems, the partner were boarding with a relative of the applicant. On 15 May 2003, police were called to investigate property damage caused by the applicant. The report identified the damage as occurring when the applicant “pulled the front security screen door from the frame” and describes continuing arguments about boarding arrangements.[45] On 25 May 2003, at those same premises, police were called because the applicant had refused to leave after refusing to turn down the volume of music.[46] On 26 May 2003, the applicant, in breach of a domestic violence order, went to a vehicle parked at the front of the residence to retrieve personal property.[47]
[45] See Exhibit 2, Additional G-documents, pp. 25-26.
[46] See Exhibit 2, Additional G-documents, pp. 27-28.
[47] See Exhibit 2, Additional G-documents, pp. 14-15.
The court brief prepared in relation to the sentencing procedure for the offences leading to the applicant’s imprisonment was in evidence.[48] It details versions of the event given by the applicant in his record of interview. The applicant said that he had not met the co-accused before the day of the assault, that the victim had been assaulted by the co-accused and another person and that he had not been involved in the assault and had tried to stop it. In a subsequent interview, the applicant agreed that he had lied about having known the co-accused previously, about the location of the assault, about who was present at the time and about his involvement in the assault. He agreed that he had not attempted to apply any first aid to the victim after the assault and that he had left him “lying motionless face up in the sand”. The report continued:
The defendant has been uncooperative with police throughout this investigation and shown no remorse for his actions. This has been demonstrated by electronically recorded admissions that he consistently lied to police about his involvement and knowledge of the incident and the persons involved. The defendant deliberately attempted to mislead police in order to distance himself from any criminal activity whilst implicating the co-offender and another fictitious person …
To justify his lying, the applicant said he wished to protect himself, his daughter and family from threats by the co-accused.
[48] See Exhibit 2, Additional G-documents, pp. 116-121.
Prisoner Work Assessment
A Prisoner Work Assessment was completed on 4 June 2012 for the applicant’s involvement with Woodford Food Services.[49] He was rated as “very good” on competence and attitude with the following comment:
… has been employed in Food Services since 13. 1. 2012. This is his third term of employment in the F1 Kitchen, previously 2010 and 2011. I am happy to report that he has matured greatly and now takes responsibility for his section in the workplace. He plans his workload for the shift and displays initiative towards his duties.
[49] See Exhibit 1, G-documents, p. 64.
Making Choices Program: Report
In relation to the Making Choices Program completed from June to September 2011, an Individual Intervention Completion Report was prepared on 26 September 2011.[50] Therein, the applicant is noted to have advised that English was his second language. It was also noted that tests indicated “a tendency to lose sight of his personal goals and to be easily sidetracked by environmental events”, a “general lack of emotional insight or gross denial of any fear” and “that his offences may be more related to risk taking behaviour and not as a result of his impulsivity”. It was also noted that the applicant had stated in a group discussion that “he had not committed his offences, that he had put his hand up for someone else”. The report advised that “[a]t no time did [the applicant] accept responsibility for his behaviours; he preferred to attribute these to his friend and the actions of the victim on the day”. The report indicates that this led to a formal caution by facilitators after which the applicant stated his intention to accept full responsibility. Nonetheless, the report noted that subsequent comments by the applicant about his involvement in the assault on a secondary basis were not consistent with sentencing remarks that he was the instigator. The report concluded that the offence mapping course compelled the applicant to accept “partial responsibility for his offence, although he did not fully comprehend the gravity or seriousness of his offence, nor accept the feedback offered by his peers.” The report described inconsistency in aspects of the applicant’s involvement with the program, such as declaring that he recalled nothing of the offence because he was intoxicated and, at other times, denying intoxication or being under the influence of alcohol. The report concluded that the applicant did not appear to recognise the significance of alcohol consumption on the day of the offence and that he might have “limited insight into the negative effects of mood altering substances on his decision making capabilities and mood management”.
[50] See Exhibit 2, Additional G-documents, pp. 177-185.
Offender case file notes
In a report, dated 15 December 2009,[51] the applicant is noted to have expressed concern that his partner may leave Queensland and his hope to obtain a court order to prevent her from doing so. On 3 February 2011, the applicant is recorded as reporting “minimal external support” and feeling that he “has ‘lost [his] roots’ regarding his familial relationships”.[52]
SUBMISSIONS
[51] See Exhibit 2, Additional G-documents, p. 286.
[52] See Exhibit 2, Additional G-documents, p. 294.
Mr Vasilli (for the applicant)
Mr Vasilli conceded that, for the purposes of s 501(6) of the Act, the applicant has a substantial criminal record on the basis of his sentence of eight years imprisonment. He made the following submissions.
The conduct of the applicant relating to his offending was of a spontaneous nature and out of character for him, as indicated by Judge Wall in his sentencing remarks. He clearly is aware of the difference between right and wrong as indicated by the remorse he has expressed because of his conduct and the empathy he has shown towards those affected by it. The courses undertaken in prison have armed the applicant with a range of strategies which will enable him to avoid circumstances which might otherwise lead him into re-offending. In particular, he was aware of the significance of being employed and, in that regard, he intended to become fully employed as soon as he can; if unable to, he intended to keep busy by undertaking voluntary work. His ability to obtain work has been demonstrated in the past and has been strengthened by the capacity to maintain employment in prison with one job lasting for two years. By engaging in work, he will make a meaningful contribution to the Australia community. There was also the prospect of the applicant continuing with the education he had undertaken while in prison which, he had stated, might lead to his becoming qualified in physiotherapy.
The applicant has maintained a sound behavioural record in prison with an absence of positive readings in alcohol and drug tests and several reports referring to his polite and respectful nature and a willingness to assist others such as mentoring younger offenders. This constituted evidence of rehabilitation and made it unlikely that the applicant would become a risk to the community.
The offending conduct of the applicant, with one exception, had been in relation to family members rather than to the public at large. This included the major offence for which he was imprisoned because it was related to the applicant’s concern about a missing cousin. It also included the assault on the partner in 2009 because the incident was precipitated by his concern that the daughter had been exposed to the partner’s sexual behaviour.
The applicant has a very strong relationship with his daughter who would be greatly affected if he were to be deported. That detrimental effect would also be felt by the father, the mother, the grandparents and the other members of the applicant’s extended family who were in Australia. The mother and the applicant had renewed their relationship and both she and her parents, who have significant health concerns, would benefit from the assistance that the applicant would be able to give them in Australia. Those family members were also available to provide assistance to him in the process of reintegrating into the Australian community. In contrast, there were no family members in the Philippines in a position to provide any assistance to him and there may be disadvantage to him because of language problems. The reference by the partner in her evidence that she would not go to the Philippines to marry the applicant was a sensible decision because of the need to consider the daughter’s best interests. Despite his change of mind about marriage, the applicant remained positive about living with the partner as friends with the mutually beneficial outcomes that would produce.
In summary, Mr Vasilli submitted that, despite the seriousness of the applicant’s offences, there was no unacceptable risk that the applicant would re-offend if he remained in Australia and, given the strong family ties that he has with his family in Australia and in the best interests of the daughter, the three relevant primary considerations weigh against the cancellation of the applicant’s visa.
Other matters are set out in the facts, issues and contentions lodged on behalf of the applicant. Included there is a reference to the motivations behind the attack by the applicant on the victim. This was a sense of internalised anger of 13 years duration because of the applicant’s belief that the victim had interfered with two cousins, had introduced another cousin to drug usage and had been involved in the disappearance of two cousins.[53] Reference is also made to an occasion where the applicant was said to have caused a prison official to be in fear and Mr Vasilli submitted that this was a misunderstanding for which the applicant apologised and had not intended any harm to the officer.[54] Also, it is noted that the applicant has accepted responsibility for his offences.[55] Other matters referred to are the length of time that the applicant has been in Australia, in that it represents almost one-half of his life,[56] and the difficulties faced by the applicant’s family in visiting him in prison, associated variously with cost, health, distance and, in the case of the daughter, avoidance of emotional harm. Also referred to is a threat from the victim that the applicant will be killed in the event that he returns to the Philippines and, in that regard, Mr Vasilli requested that names be withheld from the Tribunal’s published reasons for its decision.[57] Impediments arising from the deportation of the applicant are also referred to as including substantial language and cultural difficulties as well as the absence of family support and social, medical and economic support. The document includes reference to various international conventions particularly the United Nations Convention on the Rights of the Child, but Mr Vasilli conceded that the relevant principles listed therein were embraced by the terms of the Direction. Reference was also made to The Applicant and Minister for Immigration and Citizenship [2013] AATA 6 and Romanov and Minister for Immigration and Citizenship [2013] AATA 63.
[53] See Applicant’s Statement of Facts, Issues and Contentions, paras 7-13 and 40.
[54] See Applicant’s Statement of Facts, Issues and Contentions, para 52.
[55] See Applicant’s Statement of Facts, Issues and Contentions, para 55.
[56] See Applicant’s Statement of Facts, Issues and Contentions, para 66.
[57] See Applicant’s Statement of Facts, Issues and Contentions, paras 91-95.
Mr Matyas Kochardy (for the respondent)
Mr Kochardy made the following submissions.
The first primary consideration of protecting the Australian community weighed very heavily in favour of cancelling the applicant’s visa. He described the applicant as having engaged in conduct from 2003 onwards which was of a violent nature against vulnerable people in the community. While not all of that conduct had resulted in criminal proceedings, it could, nevertheless, be taken into account when applying the Direction. The applicant’s conduct in the stabbing incident, the domestic violence in 2009 as well as the crime for which he was imprisoned cannot be characterised as spontaneous. He had deliberately inflicted harm on others, including the victim, the man stabbed and the partner. Significantly, in almost all of his offending conduct, the applicant had attempted to minimise his involvement and to blame others. Even when undertaking the Making Choices program in 2011, after more than two years of imprisonment the applicant continued to deny responsibility for his actions in the assault on the victim. He also acted contrary to domestic violence orders made to provide protection to his aunt and to his partner and even denied knowledge of them. He also told lies to police in relation to his offending and misrepresented the truth in his evidence on matters such as self-reporting to police after the stabbing incident. The level and frequency of the applicant’s violence and his willingness to act in breach of court orders meant that the community needed to be protected from the harm he may cause.
The applicant has applied himself conscientiously to his work and to his courses and study programs in prison. However, the impact of these for the purpose of considering his rehabilitation is to be assessed in the light of his continual denial of responsibility for offences for which he was convicted. Such conduct is not consistent with the guilty plea he entered before Judge Wall in the District Court. While the judge described the assault on the victim as being out of character, that was not the case when his conduct is more broadly considered and taking into account matters which did not result in court proceedings. The judge’s comment did not take into account the violent assault on the partner only a few weeks after the attack on the victim. Denial of responsibility reflects a lack of insight into his behaviour and points to a strong likelihood that he will continue to offend if released from custody in Australia.
The Tribunal should be guarded when considering the applicant’s marriage arrangements. The applicant denied the truth of the allegations of sexual interference with two young cousins and the reference by family members to those events reflects the lengths to which the applicant’s family was prepared to go to assist him in his application.
The applicant had been in Australia for almost one-half of his life before he was imprisoned but was almost of adult age when he arrived and was an adult when his unlawful conduct commenced. He has ties in Australia through members of his family as well as the applicant’s partner and her family. He has little or no such connections in the Philippines. Yet, the ties in Australia are not necessarily close and, indeed, he has been estranged from his mother almost all of his life, including the years leading to his imprisonment. The applicant had made a minimal contribution to the community with short-term periods of employment. He has had one job for two years but this was in the controlled environment of prison and cannot be considered community contribution. He undertook voluntary work for a short period and has indicated a willingness to engage in this again. However, such involvement did not prevent the applicant from engaging in offensive conduct in the past and one should question whether it would do so in the future.
Mr Kochardy conceded that the best interests of the daughter would be served by the applicant remaining in Australia. He acknowledged that she had expressed that wish. However, he submitted that this factor weighed neutrally because the views of the daughter were not fully informed. In that regard, he noted that the daughter had advised in evidence that she had no memories of her father from before he went to prison.
In relation to other considerations, Mr Kochardy submitted that there were inconsistencies in the applicant’s evidence about the extent to which he was able to use the language of the Philippines. At times in prison, he described a need to utilise it when he struggled with English terminology. Yet, he was educated in English which was the dominant language for him before coming to Australia.
Mr Kochardy submitted that the preferable decision, after weighing all of the relevant considerations, was that the Tribunal should exercise the discretion to cancel the visa.
CONSIDERATON
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
(1) When 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.
(2) Decision-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
(1) In 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 s501(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
(1) In 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).
Of those factors, the matters applicable to the applicant are paragraphs (a),(b),(d),(e) and (f) in cl 9.1.1 of the Direction as well as those in cls 9.1.2(1)(a) and (b) thereof. In considering them, I note that cl 9.1.1 has, as its focus, not only the applicant’s criminal offending but also his “other conduct”. That is of particular relevance in this matter because the applicant’s well documented violent conduct has not always been the subject of criminal proceedings.
The applicant’s attack on the victim, the assault on the partner in January 2009 and the stabbing incident were, clearly, violent in nature and must be considered serious.[58] It also had serious consequences for the victim who has brain damage and a permanent impairment of his cognitive functions. Indeed, Judge Wall described the crime before him as “extremely” serious and that was reflected in the length of the sentence imposed.[59] The major element in the assault on the victim was the blow with a rock and, based on the description by Judge Wall, this was committed in circumstances where the victim was lying on the ground after several punches to the head. Similarly, the partner was lying on the floor when the applicant rendered her unconscious with kicks to her head. In both cases, the applicant was taking advantage of a person in a vulnerable position.[60]
[58] See cl 9.1.1(1)(a) of the Direction.
[59] See cl 9.1.1(1)(e) of the Direction.
[60] See cl 9.1.1(1)(b) of the Direction which, I note, refers to vulnerable persons in the community.
I do not accept that all of the applicant’s offending conduct can be explained on the basis of spontaneous action by him. The facts, issues and contentions filed by the applicant refer to a sense of “internalised anger of 13 years duration” leading up to the confrontation with the victim and the evidence is that he was taken to a remote place where the attack took place and left lying on the ground. The stabbing incident involved the applicant leaving the scene, going to his premises and emerging with a knife which he used in an immediate charge on the man stabbed. Those actions were not spontaneous but measured and deliberate.
The applicant pleaded guilty to the attack on the victim. However, during the police investigation, while in prison and even at the hearing, the applicant has attempted to minimise his involvement in that offence and in relation to his other offensive conduct. He lied to the police about most aspects of the attack on the victim. His prison records reveal denials of his involvement in the attack even two years after he had been in prison. The version of events recorded in the facts, issues and contentions and in his evidence, depicts the victim as the assailant against the co-accused with the applicant intervening in his defence. In his evidence, he said that he did not intend to harm the victim. This is despite rendering him unconscious by striking his head with a large rock[61] and threatening to do so a second time before desisting. That version is completely at odds with the Queensland Police brief and Judge Wall’s sentencing comments. In his evidence, the applicant explained his cessation of the attack on the victim with the comment: “There is a certain moral which I don’t cross!” Clearly, his moral compass is one which allows him, on one occasion, to strike a victim on the head with a rock so as to render him unconscious and permanently brain damaged and is one which demonstrates clearly that he fails the character test in the Act.[62]
[61] See the sentencing remarks at para 49 (above).
[62] See cl 9.1.1(1)(d) of the Direction.
In the assault on the partner in 2009, a few weeks after the attack on the victim, he described the blow to her face as an “accident” and as occurring because she had “[run] onto the end of his closed fist”. Again, I am satisfied that this represents an attempt by the applicant to minimise the violent nature of his conduct. The moral stance by which he benchmarks his behaviour also permits him to kick, with steel capped boots, a woman’s head while she is lying on the floor, rendering her unconscious. His actions were carried out in the presence of the daughter.
Minimisation by the applicant of his role in offensive behaviour extends to his breach of domestic violence orders in that he denied knowledge of one such order even though the police record makes it clear that he was informed of it. The version he gave of damaging a door was that he was acting in self-defence whereas the police record shows that he “pulled the front security screen door from the frame”. After the stabbing incident, his evidence was that he voluntarily attended the police station; the police report is in completely different terms, indicating that the applicant left the scene but returned, at which time he was detained and transported to Nerang Police Station for further investigation. The report also indicates that the applicant moved away from those premises and was not located by police for a long period during which the stabbing victim advised that he did not wish the complaint to go any further. That incident was not the only time that the applicant has come to the attention of police in relation to a knife as he was convicted in 2008 of being in possession of a knife.
In prison, a prison officer described herself as being in fear and leaving a room because of the applicant’s aggressive stance concerning a proposed drug and alcohol program. I do not accept the applicant’s immediate response in his evidence of denial that she had left the room. The officer’s record refers to her both leaving and then re-entering the room.
In all of those matters, the applicant has sought to minimise his involvement in the documented conduct. Such an attitude to his conduct represents a lack of full insight into his offensive conduct and I am satisfied that this heightens the risk of his re-offending in the future.
The applicant’s earliest convictions were in New South Wales within three years of his arrival in Australia. His evidence was that he survived during a period of homelessness in 2001 by sleeping in abandoned properties and stealing food from shops. His convictions include four counts of stealing in that year. More serious conduct, sometimes resulting in convictions, run from 2007 onwards with increasing frequency and levels of violence, particularly in 2008 and 2009. The assault on his partner in January 2009 was within weeks of the attack on the victim in December 2008 and his conduct from 2001 onwards reflects both increasing frequency and seriousness of his offending conduct.[63] That level of seriousness is also manifested in his willingness to act in breach of court orders. This is noted above and he was convicted of being in breach of orders on 6 December 2001 and on 22 July 2009.
[63] See cl 9.1.1(1)(f) of the Direction.
The applicant has received favourable reports in relation to his conduct in prison and has undertaken a wide range of courses and programs during his term of imprisonment. These may well assist him in his goal of gaining long-term employment when released from prison. However, of concern are the entries in the report of his involvement in the Making Choices program which he completed in September 2011. I have referred above to his reluctance in accepting his criminality. The report indicates that he was formally cautioned by facilitators about this, after which, it was noted, the applicant stated his intention to accept full responsibility. Despite that, the report noted that he continued to comment in a manner inconsistent with the sentencing remarks that he was the instigator in the attack on the victim. As noted above, even at the hearing the applicant sought to blame the victim by describing his role as one of assisting in the defence of the co-accused against the assault of the victim.
The Making Choices report also refers to the role of alcohol in the applicant’s behaviour. The evidence before me is that alcohol was involved on some, but not all, occasions. In the report of the incident where the applicant’s hand was cut by a glass he was holding, during an episode of verbal abuse of the partner, the police noted that “no drugs or alcohol were involved”. Even where reference is made to alcohol consumption, such as before the attack on the victim, it is not clear as to the extent of this. The Making Choices report records the applicant, at times, as stating that he was intoxicated and, on other times, denying intoxication or being under the influence of alcohol. From the perspective of the applicant’s rehabilitation, it is concerning that the report concluded that the applicant did not appear to recognise the significance of alcohol consumption and that he might have “limited insight into the negative effects of mood altering substances on his decision making capabilities and mood management”.
The level of rehabilitation of the applicant has not been tested in the community outside prison.[64] Despite the range of courses and programs completed by him in prison, I am not satisfied that they have effected a level of rehabilitation which removes the unacceptability of risk of serious harm to others in the event that he were released into the community.[65]
[64] See cl 9.1.2(1)(b)(ii) of the Direction.
[65] See cl 9.1.2(1)(a) and (b) of the Direction.
There is no evidence to indicate that the applicant was given a formal warning or otherwise made aware about the consequences of offending in terms of his migration status in Australia. However, I note that the Direction provides that an absence of a warning is not to be considered in his favour[66] and, regardless of any warning, the Principles make it clear that there is an expectation that non-citizens will be law-abiding, will respect Australia’s law enforcement framework and will not cause or threaten harm to individuals.[67]
[66] See cl 9.1.1(1)(i) of the Direction.
[67] See cl 6.3(1) of the Direction.
I am satisfied that the applicant has a substantial criminal record as reflected in his history of convictions, of violent conduct and of defying court orders. He does not pass the character test. His record is such that there is an unacceptable risk that, once released from the constraints imposed by his custody, he will continue in the same manner as before. In accordance with the Principles in cl 6.3[68] and cl 9.1 of the Direction, the retention of his visa amounts to a significant and unacceptable risk to the Australian community.[69] This weighs heavily in favour of the cancellation of his visa.
[68] In particular, note the terms of cl 6.3(1), (2) and (6) of the Direction.
[69] See ss 501(6)(d)(i) and (v) of the Act and s 2 cl 7 of the Direction.
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
(I) Reflecting 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.
The applicant made a contribution to the community doing voluntary work while he was living at the Gold Coast with the partner. However, apart from that, the only other such contribution was through being in employment which was on an intermittent basis. The applicant was aged 16 years when he arrived in Australia and his formative years were spent mainly in the Philippines. His first conviction was less than three years later, as an adult, and he had already been involved in stealing from shops while living homelessly. That early involvement in offending and its escalation in frequency and severity over the following years outweighs the level of any contribution that he has made to the community.
The applicant has several family members in Australia. Apart from the mother, it is not clear which of them are Australian citizens. The partner and her family and the daughter are Australian citizens. Statements from them and the evidence of the mother and the partner identify close ties to the applicant, express a wish for him to remain in Australia and indicate a willingness to be supportive of him if he does. Despite her evidence, the mother has not had a close involvement with the applicant, having left him in the Philippines when she came to Australia in 1986. The applicant stayed with her in Sydney for a period when he first came to Australia but they have been separated for many years, for most of which they were not in contact. Yet, each of them has indicated a willingness to provide assistance to the other if the applicant remains in Australia, with the mother providing an accommodation option and assistance in finding work and the applicant providing assistance because of the mother’s health concerns.
The evidence of the applicant was that he had proposed marriage to the partner and that they were to be married on his release from prison. The partner’s evidence was that he had not proposed marriage to her and that marriage was a possibility in the future. In that context of some uncertainty, it is more than surprising that a Notice of Intended Marriage between the applicant and the partner, signed by each of them, was in evidence. The applicant said that one of the reasons for raising the issue of marriage with the partner was that he believed it would assist him to retain his visa. However, the applicant’s attitude to marriage changed during the hearing when he heard the partner’s evidence about her unwillingness to travel to the Philippines to marry him. His position now is that he will not marry her but would be willing to share accommodation with her as friends and in that sense the partner will provide a degree of support to him if he remains in Australia.
The applicant’s evidence was that only two of his 14 cousins have maintained contact with him since he has been in prison. A female cousin from west of Sydney has indicated support for him. Two female cousins who provided letters of complaints against the victim for sexually interfering with them some years ago also made statements of support for the applicant. In assessing their evidence, regard must be had to the applicant’s tearful admission in his evidence that the sexual assaults did not occur. That evidence casts doubt on the veracity of the evidence of those two cousins and I have had no regard to it. I have also noted that the mother referred to those sexual assaults in her statement.[70]
[70] See para 39 (above)
On balance, there has been no meaningful contribution by the applicant to the Australian community. The applicant has had little contact with most of his family members but, nonetheless, there is evidence of some support for him from his mother and from a Sydney cousin as well as from the partner and her family. In accordance with the Principles in cl 6.3[71] and cl 9.2 of the Direction, I am satisfied that the strength, duration and nature of ties to Australia weigh against cancelling his visa.
[71] In particular, cls 6.3(1), (4) and (6).
Primary consideration: Best interests of minor children in Australia
In relation to the third of the primary considerations, the Direction provides at cl 9.3:
9.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
The daughter has had an upbringing characterised by long periods of separation from each of her parents. The applicant has been in prison for almost one-half of her life; the partner lived with another man for almost two years while the applicant has been in prison, during which time the daughter lived with the grandparents; and, before he was imprisoned, the applicant and the partner were living separately for several years while the daughter lived with the partner. The assault on the partner, in the presence of the daughter, occurred shortly before he was imprisoned. The daughter and the applicant have maintained a degree of contact while he has been in prison with some four visitations and an exchange of mail and, from their evidence, they have strong positive feelings towards each other and have expressed a desire to re-engage in the kinds of activities that occupied them before the applicant went to prison. The daughter is still a relatively young child and the applicant has the opportunity to provide a parental role in her life. On that analysis, it is in the best interests of the daughter not to cancel the applicant’s visa.
However, when attaching weight to this primary consideration, I note that the applicant has exposed the daughter to domestic violence in his dealings with the partner while the daughter has been present, although there is no evidence before me as to the impact, if any, that this has had on her. Based on my assessment of the applicant’s propensity, I have concluded that there is a real risk that he will commit further offences and there is the potential for the daughter to be further exposed to that behaviour.
Because of the unacceptable risk of harm to, and the uncertainty surrounding future arrangements for, the daughter, in accordance with the Principles in cl 6.3[72] and cl 9.3 of the Direction, I am satisfied that the consideration of the best interests of the daughter weighs neutrally on the exercise of discretion to cancel the applicant’s visa.[73]
[72] In particular cl 6.3(1), (2), (3) and (6) of the Direction.
[73] See Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.
Other considerations
A non-exhaustive list of other considerations is provided in cl 10 of the Direction. Of potential relevance are cls 10(1)(a) and (d) thereof.[74]
[74] See para 10 (above). No submissions were made in respect of cl 10(1)(b) or (c)of the Direction.
The mother has indicated that she has an expectation of gaining some assistance from the applicant in relation to personal care associated with her health needs. However, she has had no assistance from him for the four years of his imprisonment and for some years before that when she was not in contact with him. In the event that his visa is cancelled, that situation will not change. She has professed her love for her son but, in the event of his deportation, she would be able to reinstate contact with him by electronic or other means of communication. That applies equally to the partner and the daughter. The partner’s concern has been expressed in relation to her financial position and the prospect of the applicant providing continued financial assistance to her and the daughter. For the last four years he has been able to forward monies to her from the relatively low income he has received from prison work and, in the event that he is able to find employment in the Philippines, there is no evidence before me that this could not continue.
No age or health-related impediments are raised by the cancellation of the applicant’s visa. The evidence is equivocal in relation to language. However, the applicant speaks fluent English which reflects his education and home usage in the Philippines to age 16 as well as his life in Australia since then. The mother’s evidence was that English is widely spoken in the Philippines. In any event, the applicant has retained some elements of his home language and referred to its usage from time to time in prison. I am satisfied that no substantial language barriers arise in the event of the cancellation of the visa. No evidence was provided by the applicant of cultural barriers to the cancellation of the visa. The applicant will have initial social and economic difficulties reintegrating into Philippine society. Apart from assertions that those problems would arise through lack of family connections in the Philippines, there is no evidence before me in that regard.
A matter contended on behalf of the applicant was that the victim has threatened to have him killed in the event that he returns to the Philippines. The only evidence of this was a comment by the victim in the presence of the mother with an accompanying inference that the victim was referring to a scene in a movie. Her evidence was that she believed the victim to have been serious with his threat. The vagueness of the mother’s evidence, and the absence of any corroboration of it, leaves me satisfied that her evidence is not sufficient on which to base the exercise of discretion on such an important matter as the cancellation of a visa.
In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the other considerations weigh neutrally on the issue of cancellation of the applicant’s visa.
CONCLUSION
I have taken into account the submissions of Mr Vasilli. I have also noted the authorities referred to in the applicant’s facts, issues and contentions.[75] Not surprisingly, each of those, as well as the case of the applicant, turn to be decided on their own facts and I have not been able to obtain assistance from them.
[75] See para 68 (above).
Having considered the primary considerations and the other relevant 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 or not those considerations, on balance, favour cancellation of the visa.[76]
[76] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in this case. The nature and frequency of the applicant’s criminal and otherwise violent conduct, and the likelihood of his 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.[77] This first primary consideration weighs heavily in favour of cancellation of the visa. I am satisfied that the second primary consideration weighs in favour of not cancelling the visa. The third primary consideration and the other considerations weigh 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 the applicant’s visa be cancelled pursuant to s 501(2) of the Act.
[77] See cl 6.2 of the Direction.
DECISION
The Tribunal affirms the decision under review.
I make an order under s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 (Cth) that the identities of the applicant and any witness in regard to this application not be published to any person other than the applicant and his legal advisors and any legal advisor of the respondent and other party.
I certify that the preceding 111 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
......................[Sgd]............................................
Associate
Dated 23 April 2013
Date of hearing 8 and 9 April 2013 Counsel for the Applicant
Solicitor for the Applicant
Mr Michael Vasilli
Mr Joseph Borg
Solicitor for Respondent Mr Matyas Kochardy
1
4
0