THE APPLICANT and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 500

[2012] AATA  500

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1926
Re	THE APPLICANT
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

DECISION

Tribunal	Ms J L Redfern, Senior Member
Date	31 July 2012
Place	Sydney

The decision under review is affirmed.

…………….[sgd]……………………..

Ms J L Redfern
Senior Member

CATCHWORDS

IMMIGRATION & CITIZENSHIP:  Visa cancellation – character test - substantial criminal record - exercise of discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 – Direction [41] applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – minor when commenced living in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 501

Direction [No. 41] - Visa Refusal and Cancellation under section 501

CASES

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 23 ALN 81

REASONS FOR DECISION

Ms J L Redfern, Senior Member

31 July 2012 

1. The applicant is an 18 year old man who immigrated to Australia with his family in 2000, when he was nearly 6 years old.  He is a citizen of New Zealand.  The applicant was granted a Special Category visa on 26 January 2008 and has resided in Australia since this time.  His father is in custody in Australia and his mother and two sisters live in Samoa. He has aunts, uncles and cousins in both Australia and New Zealand.

2. The applicant has a history of criminal conduct commencing when he was 13 years old.  When he was 15 years old he was convicted of a number of criminal offences and was sentenced to a total of 10 months in juvenile detention, with a non-parole period of 5 months.  He was released from detention in February 2010.  On 8 December 2010, the applicant was convicted of further offences, including armed robbery and assault.  He was sentenced to a period of 27 months in juvenile detention.  The applicant was released on parole during this period but his parole was revoked twice and he was again released on parole on 6 April 2012.

3. On 7 May 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel the applicant’s visa.  The applicant seeks a review of that decision.  He has been in detention since 7 May 2012.

4. The Minister has discretion to cancel a visa if the applicant does not satisfy the character test set out in the Migration Act 1958 (the Act).  It was common ground that the applicant does not satisfy this character test because of his criminal history.  The issue for determination is whether or not the correct or preferable decision in the circumstances is to exercise the discretion to cancel the applicant’s visa.

   LEGAL FRAMEWORK

5. Under s 501(2) of the Act the Minister may cancel a visa granted to a person if the Minister reasonably suspects the person does not pass the character test. As I have noted, it is not in dispute that the applicant does not pass the character test because he has a substantial criminal record.

6. In deciding whether to exercise the discretion to cancel the applicant’s visa the Minister was bound by the Ministerial Direction [no.41] (the Direction) which provides for matters to be taken into account in exercising the discretion.

7. Under the Direction 41 the Tribunal must have regard to a series of considerations.  These are divided into Primary Considerations and Other Considerations set out in the Direction.

8. In this case the first and a significant primary consideration is the protection of the Australian community. The Direction states in paragraph (10.1.1(1)) that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  The examples of serious categories of offences in the Direction make specific reference to offences involving assault, reckless injury and robbery.  The Direction also indicates that the sentence imposed for a crime is considered indicative of the seriousness of the offender’s conduct against the community.

9. In considering the protection of the Australian community further regard must be had to the risk that the conduct may be repeated (clause 10.1.2).  Regard must be given in considering the sentence to the extent of the person’s criminal record including the number and nature of the offences, the period between the offences and the time elapsed since the last offence. 

10. Consideration must also be given to any: judicial comments; professional psychological reports; pre-sentence reports; parole reports; victim impact statements etc.; and, any mitigating factors.  In assessing any risk of reoffending previous conduct and criminal history must be considered as well as whether the person has breached judicial orders, including: parole; bail; suspended sentences; and, any other relevant conditions imposed. 

11. The other primary factors include: whether the person was a minor when he or she began living in Australia; the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity; any international obligations; and, the best interests of the child. In this case, it is common ground that international obligations regarding non-refoulement and the best interests of the child are not relevant. Even though the notice of intention to cancel the applicant’s visa was issued when he was still 17 years old, he was 18 by the time the decision to cancel his visa was made. Notwithstanding this, the young age of the person may still be taken into account in the other considerations (clause 10.4.1(2)). If a person was a minor when they began living in Australia and spent their formative years in Australia, this increased the likelihood that they had established greater ties and linkages with Australia and this should be given favourable consideration (clause 10.2(1)). This would also be the case if the person has spent a long period of residence in Australia prior to engaging in criminal activity (clause 10.3).   

12. The other considerations which are to be taken into account, but which should generally be given less weight than that given to the primary considerations, include: family ties; the nature and extent of any relationships; the person’s age; the person’s health; links to the country to which they would be removed; hardship likely to be experienced by the person or their immediate family or other persons lawfully resident in Australia; and, the level of education of the Applicant.

    THE EVIDENCE

13. In addition to documentary evidence about the applicant’s criminal history and his conduct while in juvenile detention and on parole, the Tribunal was provided with reports from psychologists who assessed the applicant’s risk of re-offending.  Oral evidence was given by: the appliant; Ms Vivian Urzau, friend and welfare worker; and, Dr Sarah Russo, clinical psychologist with the Adolescent Forensic Health Service who treated the applicant from about 18 October 2010 until April 2012, when he was discharged from the Service. Expert reports were provided by Dr Gary Banks and Mr Terry Smith, clinical psychologists. Both gave oral evidence.

14. There is little factual dispute in this matter. The applicant took residence in Australia with his family in February 2000 when he was five years old.  He went to school in Melbourne and completed half of Year 9 at high school.  He moved schools on a regular basis.  His parents separated in 2007 when he was 13 years old.  There are a number of references to his mother developing “mental health issues” at this time.  The applicant returned to New Zealand with his mother for about 4 months in September 2007 but came back to Australia to live with his father in early 2008.  The applicant’s father worked nights and slept during the day and from the age of about 13 years old, the applicant began to roam the streets unsupervised.  He was befriended by older peers and began drinking alcohol and taking drugs.

15. The applicant first started offending in September 2008, when he was 14 years old.  He was charged with numerous offences, including: armed robbery; aggravated burglary; making a threat; theft; recklessly causing injury; and, unlicensed driving.  He was placed on probation for 12 months without conviction, on condition that he report to the relevant youth justice unit and engage in programs as directed.  The applicant was charged with similar offences on 5 December 2008 and was again placed on probation without conviction.  On 12 November 2009, the applicant was charged with over 40 offences including: theft; unlicensed driving; multiple charges of armed robbery; criminal damage; making a threat to kill; breach of his probation order; and, possession of a dangerous article.  He was sentenced to a total of 23 months juvenile detention but, given a number of these sentences were to be served concurrently, the head sentence was 10 months with a non-parole period of five months.

16. In January 2010, the applicant committed an offence while in juvenile detention, for which he was convicted and sentenced to 14 days in juvenile detention.  He was released in February 2010 but his parole was revoked and he remained in custody until May 2010, when he committed further offences, including escape from juvenile detention.  On 8 December 2010, the applicant was charged and convicted of multiple offences relating to this escape, including: armed robbery; assault; theft; making a threat; unlicensed driving, recklessly causing injury and criminal damage. These charges arose out of an incident while the applicant was in juvenile detention. The applicant and a number of other youths escaped from the Melbourne Youth Justice Centre in Parkville after taking a 61-year-old guard hostage.  After escaping, the applicant was involved in armed robberies.  He was recaptured, returned to the Melbourne Youth Justice Centre and was sentenced to 27 months juvenile detention. The applicant accepts that this incident was serious and violent.  He held a knife to the guard as part of the escape.

17. The applicant was released on parole in March 2011 but his parole was revoked on 19 April 2011 because of failure to comply with parole conditions.  During the time he was on parole, The applicant lived with an aunt and then with Mrs Vivian Urzua, the mother of one of his early adolescent friends.  The applicant said that he missed certain appointments that he was required to attend as part of his parole and that this was why his parole was revoked.  He returned to the Melbourne Youth Justice Centre and was again released on parole on 20 September 2011.  His parole was revoked a second time on 24 October 2011 for failure to comply with parole conditions, namely failing to attend a number of counselling sessions with Dr Russo.  He returned to juvenile detention where he stayed until his release on 4 April 2012.  On his release from juvenile detention, the applicant lived with Mrs Urzua and her family.

18. While he was in juvenile detention, the applicant attended 52 counselling sessions with Dr Russo.  He attended another four sessions in the community, although he failed to attend about eight sessions while on parole.  The applicant said he was initially guarded during these sessions but “opened up” as the sessions progressed.  He discussed certain coping strategies with Dr Russo, including breaking contact with his previous co-offenders and other associates who were a bad influence and avoiding drugs and alcohol. The applicant completed his school certificate and part of his Year 11 studies while in juvenile detention.  He said he regretted his past and realised his criminal conduct was serious and would have traumatised his victims.  He was sorry for this but did not believe he would re-offend.  If he was allowed to stay in Australia, the applicant said he would live with Ms Urzua until he had settled down.  When he lived with Mrs Urzua after his release in April 2012, the applicant said he followed her rules, assisted with house chores and babysitting and became involved a rugby league program.  He also completed a barista course and hoped to find work in a cafe.

19. The applicant said that he wrote to his former associates in January 2012 to formally cut ties with them.  He has had little contact with his father and mother (his father is in prison) but has contact with his sisters, who are 16 and 17 years old, on Facebook.  He has relatives in Australia and New Zealand but does not know his relatives in New Zealand as he only returned to New Zealand for a short period of time when he was younger.  The applicant has a girlfriend who lives in Melbourne.  She visited him regularly while he was in juvenile detention and visited him about four or five times while he was in Villawood in Sydney.  They talk regularly over the telephone.  If the applicant was directed to return to New Zealand, he believes his girlfriend would return with him.  He said he is drug-free and realises that drugs and alcohol have been a problem for him over the years.  He started drinking in New Zealand when he returned with his mother and then started taking drugs when he returned to Australia.  The applicant said he relapsed in March 2011 because things got too much when he left juvenile detention.  However he recovered from this and does not believe this will happen again.  The applicant could not explain why he did not attend the counselling sessions arranged for him while he was on parole in the community.  He said he wants to stay in Australia because he has lived here most of his life - this is all he knows.  The applicant said he has support here and is confident he will not reoffend.

20. Mrs Urzua works with youth in the Pacific Island community in Australia.  She originally knew the applicant as a friend of her son but became more involved with him in February 2010, when he was released on parole.  Mrs Urzua maintained contact with the applicant while he was in juvenile detention and he lived with her and her family for a brief period in March 2011.  When he was released from juvenile detention in April 2012, the applicant lived with her and the family until his immigration detention in early May 2012.  In Mrs Urzua’s opinion, the applicant has matured a great deal.  He complied with all her requirements and helped around the house.  He is welcome to live with her for as long as he needs and Mrs Urzua says she would assist him to find a job if he was to stay.

21. Dr Sarah Russo prepared three reports as part of her treatment of the applicant.  She is a clinical psychologist with the Adolescent Forensic Health Service (AFHS). The applicant was referred to Dr Russo for individual psychological assessment and intervention in October 2010.  The referral was prompted by The applicant's escape from the Melbourne Youth Justice Centre in May 2010.  In her Treatment Plan report dated 6 December 2010, Dr Russo assessed the applicant as a “moderate risk of reoffending violently” and recommended offence specific counselling.  Dr Russo prepared a Discharge Summary report dated 30 May 2012 following the applicant's discharge from treatment by the AFHS.  The purpose of the report was to “document AFHS involvement with [the applicant]”. According to the report, the applicant was discharged from the AFHS because his youth justice order had expired and his attendance had been poor since receiving remissions.  Dr Russo reported that the applicant’s engagement in therapy improved considerably over the course of the treatment but she noted as follows:

    [The applicant]'s motivation to change and reduce risk of re-offending improved over his episode of care.  [The applicant] agreed to engage as a voluntary client whilst on remissions initially as he “wanted the extra support”, however his attendance has been poor since his parole on the 6.04.12.

    Dr Russo further noted:

    It is the writer's recommendation that to assist [the applicant] in reducing the likelihood of him reoffending, his dynamic risk factors such as his substance use, negative peer associations, and engagement in psychology psychological intervention should be encouraged.  [The applicant] may also benefit from participating in pro-social activities in the community and a referral to a positive role model/mentoring program.

22. Dr Russo reported that she had used individual counselling sessions to assist the applicant and she made the following observations in relation to his ‘Progress in Therapy’:

    Although [the applicant] is able to identify the negative consequences of his offending behaviour, he often made justifications for his offending and minimised the impact his offences had on the victims.  The writer challenge [the applicant]’s cognitive distortions about violence and offending behaviour throughout the course of treatment.

    .....................

    [The applicant]’s displayed a rigid cognitive style and he presented with several cognitive distortions and entrenched beliefs around violence, despite these being challenged throughout the course of treatment.

    ...................

    [The applicant]'s substance use were explored and he was encouraged to plan ahead to assist him in preventing impulsive substance use.  [The applicant]'s motivation to change has fluctuated across his episode of care, however in custody if he appeared to predominately be contemplative in terms of his substance use, however due to his poor attendance in the community, the writer is unable to comment on his motivation to change his substance use whilst on parole.

    ..................................

    [The applicant] continue to associate with a negative peer group and his need for power and control was continually positively reinforced by inmates given his reputation and standing over others to incite fear.  [The applicant]'s need for power and control is likely to have lead him to isolate himself more from pro-social peers, and encouraged him to gravitate towards associates where violence is glorified and other antisocial coping strategies (ie methamphetamine use) are encouraged as way of dealing with emotions.

23. Dr Russo also gave oral evidence. She said that The applicant had failed to attend eight sessions with her when he was in the community.  She had discussions with the applicant about his failure to attend the counselling sessions and believed that he understood the consequences.  Based on her counselling sessions with the applicant, Dr Russo said she had formed the view that the applicant believed problems could only be solved by violence. She did not know whether this was still his view.

24. Dr Russo saw the applicant once after he was released on parole in April 2012 but he missed three appointments with her, being appointments on 23 April, 1 May and 8 May 2012.  She also saw him when he was on parole in March 2011.  The applicant reported alcohol use at that time.  She saw him for one session when he was on parole on 4 October 2011 (he missed two other sessions) and he presented as substance affected.  The applicant asked Dr Russo to contact his drug counsellor to arrange for “detox”. When asked whether she had an opinion about the applicant’s risk of recidivism, Dr Russo said she had not seen him since April 2012 and therefore could not offer an opinion about the current risk.

25. Mr Terry Smith prepared a report dated 10 July 2012.  He also gave evidence and was cross examined on his report.  Mr Smith reviewed the reports of Dr Russo, Dr Gary Banks and Mr T Wodak, Principal Assessor for the Department.  He also reviewed reports from the applicant's case managers and reports of the applicant’s criminal history.  Mr Smith conducted a telephone interview with the applicant of a little over three hours.  Mr Smith also interviewed Mrs Urzua.  Based on this material and his own clinical assessment of the applicant, Mr Smith assessed the applicant's risk of reoffending as low.  Mr Smith did not agree with the assessment of Dr Banks, which he stated assessed risks from an actuarial view.  Mr Smith's assessment was based on clinical judgement.  Mr Smith was of the view that the applicant's offending was “motivated by choice in the context of delinquent peer subgroups and alcohol dependency”.  The applicant had progressed through programs intended to address these issues and had developed a “deep and enduring bond” with Mrs Urzua, who provided him with support, accommodation and a positive relationship.  The applicant told him that he had cut his relationship with former associates, which Mr Smith considered was significant.  The fact that the applicant was being threatened with deportation was a "watershed in his young life" given his close links to Australia.  The applicant had relapsed in drug use but relapse was not unusual.  The applicant had not continued with drug use and, significantly according to Mr Smith, the applicant did not reoffend when he was on parole.

1. Mr Smith accepted that there were limitations on making assessments through telephone interviews.  He was aware the applicant did not attend counselling sessions in April 2012 but did not consider that this of itself would affect the applicant's risk of recidivism.  Mr Smith was impressed that the applicant had, in his opinion, changed.  Mr Smith had worked with juvenile offenders from 1985 until 1991, but not much since.  He is currently an independent clinical psychologist in private practice.

2. Dr Gary Banks is a clinical and forensic psychologist.  He was appointed to the Children's Court as a clinician in 2000 and stated that he had extensive experience in dealing with juvenile offenders.  Dr Banks assessed the applicant in an interview at  Villawood on 13 June 2012.  He reviewed a number of the same reports and documents reviewed by Mr Smith.  Dr Banks assessed the risk of the applicant reoffending using a tool known as the Level of Service Inventory – Revised (LSI-R).  The LSI-R is a quantitative survey of attributes of offenders and their situations relevant to the level of service decisions.  The test is conducted by analysing the answers to a standard series of questions.  The questions are grouped into 10 subcategories, including criminal history, alcohol and drug problems, attitude/orientation and education/employment.  Based on the tool, Dr Banks assessed the applicant in the moderate risk category, predicting an approximately 48.1% chance of recidivism, although he gave evidence that the applicant was at the top of this range (closer to 80%). He also stated that this was consistent with recent research based on statistics over a period of 15 years from 1994 of reoffending in New South Wales.  Juveniles were a special risk of reoffending according to the study, with 80% of juvenile offenders convicted of another crime.

3. Dr Banks conceded that the LSI-R did not take into account issues particular to the applicant, including: the fact that he had completed year 10 and part of year 11 while in juvenile detention; the stable accommodation that had been offered by Mrs Urzua; the barista course completed by the applicant while living with Mrs Urzua; and, the fact that the applicant was subject to the threat of a deportation order if he reoffended.  Dr Banks was nonetheless of the view that the applicant would still be a moderate risk of reoffending.  The involvement of Mrs Urzua was probably the most positive intervention in the applicant's life but her role was "sparse across the landscape of otherwise negative factors".  Dr Banks was not optimistic.  In particular, he had regard to the latest report of Dr Russo, which noted that the applicant still needed intervention.  He was concerned that the applicant did not attend the counselling sessions when on parole and said this was significant because the breach occurred at a time when the applicant had already been served with a notice by the Department about the Minister's intention to cancel his visa.  According to Dr Banks the difficulty was that the applicant was untested.  There was no meaningful history about his conduct without regulation.  In the year before his release, there had only been a period of 10 to 12 weeks when the applicant was not in juvenile detention.  It was true he had not offended but he was noncompliant with parole conditions on several occasions.  In Dr Banks opinion, there was not enough demonstrable change in the applicant to show that the LSI-R result was spurious.  It remained Dr Bank’s view that there was a moderate risk of the applicant re-offending.

   SUBMISSIONS OF THE PARTIES

4. The applicant accepted that he had an extensive and serious criminal history in Australia but he contends there is a low risk of him re-offending and therefore does not pose an unacceptable risk to the Australian community. He relies on the evidence of Mr Terry Smith, the fact he has not offended for two years and the support he has from Mrs Urzua and her family. The applicant has lived in Australia since he was five years old and spent his formative years in this country. His most significant ties are in Australia, although he accepts he has close links to his sisters in Samoa. He has no ties to New Zealand. The applicant contended this should be given great weight and would be a circumstance where it may be appropriate for the Australian community to accept more risk because he has “become part of the Australian community owing to [his] having spent [his] formative years, or a major portion of [his] life, in Australia” as recognised by clause 5.2(4) of Direction 41.

5. The Minister contended that the protection of the Australian community weighed heavily in favour of cancelling the applicant’s visa. His criminal history reveals a pattern of violent behaviour and he has been convicted of an extensive number of offences over a three year period from 2008 to 2010. In a number of cases, he committed crimes shortly after being released while on bail or parole. His last offence was particularly serious and violent and involved an escape from the Melbourne Youth Justice Centre in May 2010. He and other inmates planned the escape and threatened a guard with a knife. The fact that many of his offences were committed under the influence of alcohol or drugs should not be considered a mitigation factor. There is no evidence that the applicant has been rehabilitated and even though he had not committed any offences for two years, he has been in detention for most of that period.  There is at least a moderate risk that the applicant will re-offend and the Minister relies on the evidence of Dr Banks and Dr Russo in this regard. The risk of harm to the Australian community is serious because of the violent nature of his crimes.

6. The Minister accepted that the applicant has lived in Australia since he was very young but contended most of his ties to the community were with associates who had engaged in criminal activity with him. His relationships in Australia are otherwise limited. His father is in prison and his mother and sisters live in Samoa. His girlfriend would be likely to move with the applicant if he is deported. The Minister acknowledged there may be detriment to the applicant if he is separated from the support provided by Mrs Urzua but noted this support could continue through telephone contact. While there may be some hardship to the applicant in moving back to New Zealand, this consideration should be given less weight than the primary considerations, which favoured cancellation.

   CONSIDERATION

7. The criminal offences committed by the applicant were serious and extensive over a short period of time.  He was charged with close to a 100 criminal offences, the majority of which are specifically referred to in the Direction as ‘serious’ crimes.  He was given a probation order for the 2008 offences, which he breached within months.  He was convicted of multiple offences in November 2009 for, amongst other things, armed robbery and threats to kill.  These offences involved violence or the threat of violence.  There are no sentencing remarks available but the sentences imposed, given the applicant was a juvenile offender and only 15 years old that time, show that the offences were serious.  The most recent criminal conduct was his escape from detention.  There is no doubt that the applicant’s crimes were serious and had an impact on other members of the Australian community.  According to a police profile provided to the Department dated 25 May 2011, the applicant has used carving knives, tomahawks and, on one occasion, an axe to assist in the commission of his serious offences.  The applicant does not dispute this. The weapons have been used to threaten victims.

8. There is a period of only 18 months between the time the applicant commenced offending in September 2008 and the commission of his last offence in May 2010.  The offences were committed within short intervals and the longest period of non-offending was nine months during 2009.  The applicant has not committed any offences since May 2010 but he has been in detention for all but 10 to 12 weeks in this period. The seriousness of many of the offences is exacerbated because they were committed when the applicant was on parole or bail and once when he was actually in detention.  This shows a deliberate disregard for authority. 

9. The applicant accepts his record is serious but his key contention is that his risk of re-offending is low.  This contention is based on the evidence of Mr Smith and the applicant's own evidence of his change in attitude and remorse.  Mr Smith acknowledged that his opinion was primarily based on his clinical judgement and factors which were subjective. He also noted his assessment was based on a telephone interview, which was not ideal. Factors that he considered significant as predictive of a low risk were: the intensive counselling sessions while in detention; the action by the applicant to sever his ties with previous associates; the support of Mrs Young and her family; and, the threat of deportation.  Mr Smith gave little weight to the LSI-R assessment tool but also acknowledged his opinion was based on subjective factors that had not yet been tested.  Relevantly, Mr Smith reported, “Time is the real evidence in this case and the argument of [the applicant] that he has not had sufficient time to really prove himself in the community seems to hold merit.”

10. This is a matter in respect of which Mr Smith and Dr Banks agree.  Both accept there is a degree of uncertain prediction in assessing the risk of recidivism.  Dr Banks uses a tool to assist with the process but accepts the tool does not take into account the applicant's particular certain circumstances in a flexible model.  When pressed on these issues, Dr Banks refers to objective criteria based on the applicant’s circumstances to support his view that the applicant remains a moderate risk.  Those objective factors are: the failure of the applicant to attend counselling sessions when he is in the community as recently as April 2012; the concerns raised by Dr Russo about the nature and extent of the applicant's rehabilitation; and, the lack of a demonstrable history of compliance in the community.

11. To the extent there is conflict between the Dr Banks and Mr Smith, I preferred the evidence of Dr Banks.  Dr Banks uses a recognized tool to assess risks but in giving his evidence, made clinical observations which were in part supported by objective factors.  On the other hand, Mr Smith was dismissive of the fact the applicant had not attended counselling sessions, despite the threat of the notice of intent to cancel his visa.  He also appeared to place little weight on the concerns raised by Dr Russo in her report of 30 May 2012.

12. While Dr Russo declined to offer a view about the applicant's risk of recidivism, she raised significant concerns about the applicant's rehabilitation.  She recommended further counselling and was not convinced the applicant had changed his views about violence.  The views of Dr Russo are important because she is independent and has reviewed the applicant over a period of nearly 18 months. 

13. Having regard to the concerns raised by Dr Russo in her report, the fact that the applicant: did not attend counselling sessions; has breached parole conditions twice in the past 15 months; and, in particular, does not have any real history of compliance in the community over a period of three years, I do not accept the contention that the applicant has a low risk of recidivism.  I accept that the applicant has gone through, and is still going through, a process of change.  He is young and has had little opportunity for guidance and good role modelling but I find that the risk that the applicant will re-offend is real and significant - whether the risk can be assessed by reference to a percentage is immaterial. In my view there is a real risk that the applicant may reoffend and that this would be a real and significant danger to the Australian community. A real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198.

14. The Direction provides that due consideration should be given to the Government's objectives set out in Part 1, paragraph 5 of the Direction.  According to paragraph 5.1, the Government “… seeks to protect the Australian community from an unacceptable risk of harm as a result of criminal activity or other serious conduct by non-citizens …”. In this case, the offences committed by the applicant were serious, repeated and involved violence. Any repetition of the conduct by the applicant has the potential in the future to cause injury and/or harm to the community. In the Tribunal’s view, the comments of Davies J in re Stone and Minister for Immigration and Ethnic Affairs (1981) 23 ALN 81 are apposite.

    The seriousness of the crime is an important consideration.  The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism. 

    The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community.  Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry.  The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. 

15. Given these matters, the consideration of the protection of the Australian community weighs heavily in favour of cancelling the the applicant’s visa.

16. The second key contention raised by the applicant is that, even if it is established there is a real risk of the applicant re-offending, he was a minor when he arrived in Australia and has spent the majority of his life in Australia. He has therefore become part of the Australian community and it would be appropriate for the community to accept more risk in these circumstances. There is no dispute that the applicant spent his formative years in Australia. He associated with bad influences when he was young following family break down and lack of supervision. I accept that the applicant has significant linkages with Australia – he was educated in Australia and no doubt most of his childhood memories are about Australia. His friends are in Australia, both good and bad influences, and it is the only home he can recall. He has no association with New Zealand or Samoa or their respective cultures. He commenced offending after seven years but given his youth, the length of time he resided in Australia before he engaged in criminal conduct is nevertheless significant. I find that these matters weigh strongly in his favour.   

17. With respect to the non-primary considerations set out in clause 11 of the Direction, it is relevant to take into account: the applicant’s youth; the negative impact on the applicant when the support provided by Mrs Urzua as a parental figure is no longer available; the hardship he is likely to experience; his level of education; and, efforts to improve and the fact that there are no significant familial ties or support in New Zealand.  In my view (and contrary to the Minister’s contention), the notice of intention to cancel the applicant’s visa is not a ‘prior warning’ as contemplated in clause 11(3) (g) of the Direction and as such is not a consideration that weighs in favour of or against the applicant. The notice was simply a mechanism to provide the applicant with the opportunity to present his case. It may be relevant as a factual matter that the applicant was served with the notice and still did not attend the mandated counselling sessions with Dr Russo, but this relates to the consideration of whether it is likely that the applicant will re-offend and I have already formed a view there is a real and significant risk.  

18. Clause 11(3)(b)(ii) provides that the person's age (whether or not they are a minor) should be taken into account in circumstances where the person is “… living or under the care and control of a parental or care figure …” and there is a negative impact on the person arising from the cancellation. In this case, cancellation of the applicant’s visa will mean that the influence of Mrs Urzua, which Dr Banks described as one of the positive forces in the applicant's life at this time, will be removed.  The Minister contended that Mrs Urzua and the applicant can still speak over the telephone as they have done over the past two years and this factor should be given little or minimal weight.  While I accept that the negative impact of cancellation could be ameliorated by ongoing telephone contact, this would be an imperfect substitution for direct and close guidance and care. I therefore do not accept the Minister’s contention that this should be given minimal weight. Nor do I accept the contention that the applicant's relationship with Mrs Urzua, of itself, should be given the same weight as the primary considerations. The Direction provides that this consideration should “generally” be given less weight than the primary considerations. The Direction is drafted in this way to provide guidance to the decision maker on the relative weight to be given to various factors. Having regard to this guidance, I am of the view this is a significant factor in the applicant’s favour  but must be balanced against the other considerations and, in particular, the primary considerations.

19. I accept that the applicant does not have any close links to New Zealand and while some of his family live in Samoa, he has no other connections with this country.  The applicant described Samoa as a “third world” country where he would see little opportunity.  There is no doubt the applicant will suffer some hardship if he is forced to leave Australia but it will not be insurmountable. There is no reason to believe the applicant will not be able to get access to support services in New Zealand to assist with substance abuse in the event he relapses. I also note that the applicant was confident his girlfriend would go with him if he is deported.

20. I accept that the applicant has made efforts to improve his education and training and this is in his favour, but of less significance than the other considerations. Conversely, it may assist him in adjusting to life and work in New Zealand.   

21. Weighing all the relevant considerations in this matter I consider that the decision of the Minister should be affirmed. The fact that the applicant was so young when he arrived, has lived in Australia for much of his life and would lose the support of Mrs Urzua at a ‘watershed’ time in his life if he is forced to leave, is compelling.  On the other hand, the seriousness of the offences previously committed, the fact they were violent and repeated and the fact there is a real and significant risk of recidivism, are strongly countervailing considerations. In balancing these competing considerations, it is useful to examine the objectives of the Direction. The objectives and general guidance in relation to the Direction are set out in clause 5. It is noted that the Government seeks to protect the Australian community from “unacceptable risks of harm” as a result of the conduct of non-citizens but that it may be appropriate for the Australian community to accept “more risk” where the person concerned has become part of the community.

22. In this case, the preponderance of evidence is that the risk of harm to the community may be high because there is a real risk of recidivism and the consequences, given the threat of violence and the use of weapons, would be serious. While the applicant has become a part of the Australian community, his level of engagement and connection has been limited by his criminal activity, his time in detention and his association with anti-social influences. On balance, this is not a case where it would be appropriate for the Australian community to accept the risk presented by the applicant and I conclude that the correct and preferable decision, therefore, is that the decision of the Minister should be affirmed.

I certify that the preceding 47 paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.

...........[sgd].............................................................

Associate

Dated  31 July 2012

Dates of hearing	17 July 2012
Solicitors for the Applicant	KTG Lawyers
Solicitors for the Respondent	Minter Ellison