The Applicant and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 372
•19 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1122
GENERAL ADMINISTRATIVE DIVISION ) Re The Applicant Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal M D Allen, Senior Member Date19 May 2010
PlaceSydney
Decision The decision under review is AFFIRMED.
..................[sgd.......................
M D Allen, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP: Visa cancellation. Convicted of four counts of sexual assault involving own daughter. Other offences taken into account to show course of conduct. Offences abhorrent and risk of re-offending real. Visa cancellation affirmed.
LEGISLATION
Migration Act 1958 sections 499, 500, 501.
CASES
Re Lam and Minister for Immigration & MulticuItural Affairs [1999] AATA 56
Re Stone v Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Minister for Immigration Local Government & Ethnic Affairs v Batey (1993) 112 ALR 198
REASONS FOR DECISION
19 May 2010 M D Allen, Senior Member 1.On 19 September 2008, the Applicant pleaded guilty to four offences involving non-consensual sexual intercourse with his daughter contrary to the provisions of section 61L of the Crimes Act 1900 (NSW).
2.Although only four offences were contained in the indictment to which the Applicant pleaded guilty the sentencing judge acknowledged in his sentencing remarks that the four episodes were not isolated acts and that the charges were representative charges demonstrating that the four offences charged were not aberrant or isolated.
3.The offences were committed against the complainant commencing when she was 20 years old and the final offence occurred when she was 23. The offences only came to the attention of authorities after the Applicant presented himself at a Police Station and made admissions. Apparently this course of action occurred after a conference with other members of his family following an attempted assault upon his adult niece.
4.As a result of his pleas of guilty the Applicant was sentenced to a total period of imprisonment of five years with a non-parole period expiring on 18 March 2010.
5.Given the nature of the offences I have not used the name of the Applicant in these reasons.
6.By a decision dated 17 March 2010 a delegate of the Respondent cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa on the grounds that he did not satisfy the character test as set out in section 501 of the Migration Act 1958 (“MA”).
7.Subsection 501 (2) of the MA states:
“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”.
8.Whereas subsection 501 (6) MA states inter alia:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c)Having regard to either or both of the following:
i.the person’s past and present criminal conduct;
ii.the person’s past and present general conduct;
the person is not of good character.
9.“Substantial criminal record” is defined by paragraph 501(7)(c) MA as where a person has been sentenced to a term of imprisonment of 12 months or more.
10.In exercising the discretion whether or not to cancel the Applicant’s visa, I am required, pursuant to section 499 of the MA, to taken into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
11.At the time the Minister’s delegate made the decision in this matter and currently the Ministerial Direction in force is No.41.
12.Direction No.41 states as its objective:
“5.1 Objectives
1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
13.Further general guidance is given in clause 5.2(2) of Direction No.41, namely:
“In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:
(a) The nature of any harm that the person may cause to the Australian community; and
(b) The risk of that harm occurring.”
14.Direction 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa the decision maker shall take into account four primary considerations and seven other considerations.
15.In these proceedings it was not disputed by the Applicant that given the nature of his offences and the sentence imposed he did not meet the character test.
16.The primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction No.41 are:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention of the Rights of the Child (CROC); and
(ii)…
PROTECTION OF THE AUSTRALIAN COMMUNITY
17.The crimes committed by the Applicant can be described as abhorrent to the whole community involving as they did sexual assaults against his own daughter.
18.In examining the seriousness of the offences I have taken into account the sentencing remarks of Bennett DCJ in particular his comment that:
“These four episodes were not isolated acts. The charges are representative charges demonstrating that the four offences charged were not aberrant or isolated.”
19.His Honour then remarked that the offences were objectively serious but later in his sentencing remarks, after referring to a pre-sentence report, stated:
“Quite troubling is the proposition in the report that although presenting as ashamed and remorseful, he gave no indication in the course of discussions that he understands the impact, both immediate and long term, that this behaviour has had upon his daughter”.
20.His Honour also referred to that part of the pre-sentence report that attributed a cause of the Applicant’s offending to the ill health of the Applicant’s wife which had precluded normal marital relations.
21.Like Bennett DCJ I find some of the comments in the pre-sentence report distinctly unhelpful (indeed His Honour used the word “bizarre”). For example, the pre-sentence report refers to the Applicant being constrained by religious scruples from using either masturbation or sex workers. I cannot rationalise these comments with the later statement that
“It is suggested that he has a tendency to sexualise behaviours by women regardless of this relationship with them. He has a history of drinking to excess. He spoke about how he would go out and drink to regain some sense of youth and also to seek casual sexual relationships.”
22.In evidence to me the Applicant stated that one of the reasons leading to his offending was that he misread the signals he received from his daughter. Similar comments were before Bennett DCJ and I agree with His Honour that it is difficult to understand how one comes to misunderstand appropriate affection shown by the complainant to the Applicant as her father.
23.The comment in the pre-sentencing report that he “has” a tendency to sexualise behaviours by women may explain why he made unwanted sexual advances towards his niece.
24.Upon his sentencing a psychological report by a Dr Flatt was tendered. That report attempted to explain the Applicant’s attitudes towards sex but was rejected by Bennett DCJ as “a rather shallow analysis”. A further report from Dr Flatt was tendered in these proceedings but I do not derive any assistance from it as Dr Flatt was unavailable for cross examination and the Applicant conceded that he had not seen her since his incarceration.
25.To his credit the Applicant, after attending the Police and making a confession, pleaded guilty thus saving his daughter the trauma of a trial. Before me he conceded that the offences were not spur of the moment offences and that he was aware that what he was doing was wrong and that he was causing harm to his daughter.
26.Unfortunately any reports made on the Applicant for presentation to the NSW Parole Board were not before me. I do take into account however that the Applicant was thought fit for release, albeit under supervision. His evidence was that, had he not been taken into immigration detention upon his release from prison, he would have been placed in a half-way house where he was free to leave to undertake work or other activities between the hours of 6am and 6pm.
27.The Applicant gave evidence that he had undertaken courses in gaol designed to give sexual offenders insight into their behaviours and that he now understands that his offences occurred because of selfishness and a “me syndrome”.
28.There is no doubt that the Applicant’s offences are serious. I am troubled by the comments in the pre-sentencing report that he has a tendency to sexualise behaviours by women regardless of his relationships with them. Although charged only with offences against his daughter, matters were brought to a head when he attempted to initiate sexual relations with his niece.
WAS THE APPLICANT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
29.The Applicant was not a minor when he began living in Australia so clause 10(1)(b) of Direction No.41 does not apply.
THE LENGTH OF TIME THE APPLICANT HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA
30.The Applicant first arrived in Australia from New Zealand in 1981, returned to New Zealand in 1984, and then returned to Australia in 1987. He has travelled outside Australia since that time, albeit for short periods primarily to New Zealand.
31.There is no doubt that the Applicant has integrated into the Australian community and references tendered at his sentencing hearing speak of a person who was a good worker, supportive of a terminally ill wife and who, after offending, had reconnected with his church. Whether that reconnection will be maintained is of course a matter of conjecture.
INTERNATIONAL OBLIGATIONS
32.The only relevant international obligation is that pursuant to the Convention on the Rights of the Child.
33.In 2000 the Applicant and his late wife “adopted” a female child of his wife’s brothers shortly after her birth. No evidence was before me as to any formal adoption procedures but it is not uncommon in Pacific Islander communities for a child to be handed by its birth parents to other relatives in order that the child might be raised by them.
34.That child A remained with the Applicant and his wife until the wife’s death. She now resides with the Applicant’s late wife’s brother and his wife. The parents of the child are in New Zealand and the mother is serving an eight year term of imprisonment.
35.What contact the Applicant may have with the child in future is uncertain. His evidence is that he is now allowed supervised access to the child. By that I infer that such access must be in the presence of another adult. During his time in prison the Applicant received visits from the child. She does not know the details of his offences, although the Applicant has stated she would be told “[when] she is at an age where she could handle the drama”.
36.Prior to the cancellation decision being made, an officer of the Department of Immigration and Citizenship interviewed the child’s current carer by telephone. No issue was taken by the Applicant as to the content of the conversation.
37.According to the notes made of the interview, the current carer believes that her care and custody of the child will be a long term arrangement. She added that the child and the Applicant are very close and that she misses him.
38.The Applicant stated that he intended to contribute towards the child’s maintenance if he could. No doubt this would apply whether he is in Australia or New Zealand. He also agreed that the child was now quite happy living with her Aunt.
39.To my mind, given that the child is now in an apparently stable relationship and the Applicant would, at best, have visiting rights only, the best interests of the child do not mandate that the Applicant be permitted to reside in Australia.
40.Indeed there is much to be said for a view that the stability of the child’s relationship with her current carers would be advanced by the absence of the Applicant. It may well be that whilst the Applicant is still visiting the child she will want to recommence living with him, a situation not permitted by his parole conditions nor, it seems, would it be permitted by the child’s current carers.
41.Although not explored further the record of the interview with the carer reveals that there is between the Applicant’s family and his late wife’s family “a history of difficulties in getting along with each other”. Given that the child is a niece of the Applicant’s late wife, it seems that the stability of her current living arrangements, and hence her best interests, would not be adversely affected by the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
42.Clause 11 of Direction 41 sets out seven other considerations which although not primary, are to be considered if relevant.
43.So far as family ties are concerned, the Applicant has a mother and brother in Australia. He has three children in Australia, including the complainant. Two of those children have no contact with him, but the youngest son has sent greetings to him via that son’s girlfriend and has also sought to borrow money from him. There has been no physical contact.
44.The Applicant’s late wife gave evidence at his sentencing. Bennett DCJ referred to the wife as being estranged from her children as a result of what occurred and the support she gave to her husband.
45.I find it significant that none of the Applicant’s children filed any material in this matter in support of their father.
46.The Applicant also has one “son” in New Zealand although if I understand his evidence correctly he is not the biological father of that child. He also has other relatives in New Zealand, apparently living in Auckland.
47.I do not regard family ties as mitigating against the cancellation of the Applicant’s visa.
48.The Applicant is still relatively young and in good health. He has had a good work record in Australia and has some skills. I see no reason why he would not be able to obtain employment in New Zealand, particularly if residing in a major city such as Auckland. The Applicant had his formative years in New Zealand and first moved to Australia at the age of 18 years. Given his relatives in New Zealand and his prior residence there, I do not consider it would be any great hardship were the Applicant return to New Zealand.
49.There is no evidence that the Applicant has any health issues and in any event New Zealand has a comparable standing of living and health services to Australia.
50.In my opinion none of the seven other considerations alluded to in paragraph 11 of Direction No.41 mitigate against the cancellation of the Applicant’s visa.
51.Apart from the non-primary consideration referred to in Clause 11 discussed above, I take into account general deterrence. As was said by Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1980-81) 3 ALN; in 129:
“The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature”.
His Honour continued at N135:
“So far as possible, the persons who are accepted as full member of the Australian community are persons who are stable and honest, so that the risk of further harm to Australia is reduced should the offender recidivate and so that other immigrants are restrained in their conduct in Australia by the knowledge that they also may be deported if they offend against Australia’s law.”
52.The cancellation of the Applicant’s visa will be noted amongst the Pacific Islander community in Sydney who know the Applicant and his extended family. It will send a salutary message that persons who commit serious offences are at a very real risk of being removed from Australia.
53.Although the Applicant’s crimes were his first offences against the criminal law, they involve, as an aggravated feature, a breach of trust. More worrying in these current proceedings is the statement in the pre-sentencing report referred to previously, that the Applicant had a tendency to sexualise behaviours by women regardless of his relationship with them. As stated previously this manifested itself not only in the offences for which he was sentenced but also in the advances towards his niece.
54.The Applicant stated in these proceedings that he “misread signals I received from my daughter”. I find that comment disturbing as it suggests that the Applicant does not appreciate that whatever the signals from his daughter may or may not have been, she was still his daughter.
55.This is apart from any question of whether in another circumstance not involving family he may again misread signals given that in the past he has had a tendency to sexualise behaviours by women, and to seek casual sexual relationships.
56.The Applicant has undergone courses whilst in prison and now professes to understand his behaviour and what give rise to it. He professes remorse but as was pointed out by Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 51:
“Once a person has shown a disregard for the law, it can never be said that there is no risk of reoffending”.
57.Currently the Applicant’s alleged reformation has not been tested as he has been in immigration custody.
58.Where in clause 5.1 of Direction No.41 reference is made to the safety of the Australian community, I understand that the Australian community is an inclusive term and refers to the members of an offenders family as much as the community at large.
59.In Re Stone supra, Davies J said at N133:
“The likelihood of recidivism is a strong factor of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again… and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
60.As to what constitutes a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198 that there was no inconsistency in finding that a risk of recidivism was real in the sense that it is not far fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low.
61.The crimes committed by the Applicant can properly be described as abhorrent. Although the cancellation of a visa is not an additional punishment the seriousness of the behaviour is properly to be taken into account. So far as this Applicant is concerned I find that the risk of his re-offending is real and if it were to occur it would result in great harm.
62.The decision under review is AFFIRMED.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.
Signed: ...................[sgd]....................................
K. Lynch, AssociateDate of Hearing: 12 May 2010
Date of Decision: 19 May 2010
Solicitor for the Applicant: C Levingston, Levingston & Associates.
Solicitor for the Respondent: G Johnston, DLA Philips Fox
1
0