Tiplady and Minister for Immigration and Multicultural Affairs

[2000] AATA 1058

DECISION AND REASONS FOR DECISION [2000] AATA 1058

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/870

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      DARYL KEVIN TIPLADY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date30 November 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa cancellation - persistent disregard of law - risk of recidivism - length of residence.
Migration Act 1958 s 501
Minister for Immigration and Multicultural Affairs and Gunner (1998) 156 ALR 306

REASONS FOR DECISION

30 November 2000 Deputy President DP Breen, Presidential Member                  

1. This was an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 6 June 2000 to cancel the applicant's Sub-class 444 Special Category Visa.

2. The matter was heard by me in Brisbane on 27 November 2000.  The applicant, Daryl Kevin Tiplady, represented himself.  Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron, represented the respondent Minister.

3. Oral evidence was taken from the applicant and Mr David John Pope, a friend of the applicant.  The following documents were taken into evidence.

• Exhibit 1            "G" Documents

• Exhibit 2            Respondent's Dossier of Documents

• Exhibit 3            Applicant's Dossier of Documents

• Exhibit 4            Opening and Closing Statement of Daryl Tiplady

1. Mr Tiplady is 31 years of age and a New Zealand citizen.  He visited Australia for prolonged periods in 1986 and 1987 and then returned to live here permanently in 1989.  In 1997 the applicant was convicted of assault occasioning bodily harm and was sentenced to 12 months imprisonment, suspended for 3 years.

2. Mr Tiplady's visa was cancelled under Section 501 of the Migration Act 1958. The convictions in 1997, and subsequent sentence, mean that he has a substantial criminal record as defined in subsection 501(7); as an applicant merely needs to be sentenced to 12 months imprisonment, it is not necessary that they actually serve 12 months. As a result, he fails the character test in Section 501. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 – applies to the exercise of the discretion.

3. There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.  The latter consideration does not apply in this case.

4. Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.

5. Mr Tiplady's criminal history is as follows:

• Western Australia

1. Possession of Cannabis

• Victoria

1. Burglary, theft, assault in company

• Queensland

1. Receive Job Search Allowance while working full-time and not   declaring income from employment

2. Assault occasioning bodily harm
     Producing a danger drug – 8 counts
     Possessing a dangerous drug – 9 counts

3. Assault occasioning bodily harm
     Knowingly obtain Job Search Allowance while working and not   declaring income from employment

1. The applicant also has numerous traffic infringements, including unlicensed driving and speeding in Western Australia, Victoria and Queensland.

2. While the charge of assault occasioning bodily harm in 1997 is the conviction which enlivens the power in Section 501, the Tribunal can take into account the applicant's entire criminal conduct when considering the risk to the protection of the Australian community. The three charges of assault all come within the description of very serious under the Ministerial Direction, although they are probably on the lower scale of such offences, and at least two arose out of domestic situations. The production and possession of drugs, albeit cannabis, are also considered very serious under the Ministerial Direction. It is well known that the use of cannabis is often a precursor to use of harder drugs. Fraud is also considered to be a serious crime under the Direction. While this is quite small-scale fraud, it is against the Commonwealth and there are two separate but prolonged incidents of this fraud. A lot of these crimes, and particularly the traffic offences, in one-off circumstances would generally be considered as social pest activity. However, given the prevalence and continuity of these offences by this applicant, across three States, he must be considered more of a social menace than a mere social pest.

3. On the whole, this lengthy criminal history must be regarded as quite serious.  The crimes of defrauding this country's social security system and producing drugs for distribution within this country, infringe greatly on Australia's hospitality to non-citizens.  Further, the crimes of assault put at risk the physical safety of the members of the Australian community.

4. The Tribunal assesses the risk of recidivism as being at least medium in this case.  The length of the criminal history, the variety of criminal offences, and the fact that the applicant has re-offended despite periods of good behaviour, increase the risk of recidivism.  The fact that the applicant committed offences whilst on good behaviour bonds and whilst serving suspended sentences, also makes it clear that fear of future punishment has not acted as an effective deterrent in this case.  Finally, the applicant has abused cannabis over an extensive period of time.  He began using when he was 15 years of age and while he denies that he did so on a daily basis over the entire time, it was still regularly and he admits smoking cannabis excessively during 1997.  While the applicant claims to no longer use this drug, his long association with the drug makes it a real risk that he may begin using again and this increases his risk of recidivism.

5. The applicant has done a number of courses in prison to address his substance abuse and other offending behaviour.  However, given the length and seriousness of his criminal history, this can only marginally reduce his risk of recidivism.

6. The question of general deterrence is not of great weight in this matter as the visa cancellation is not likely to be published outside of Mr Tiplady's small circle of friends.

7. The second primary consideration is the expectations of the Australian community.  Given the length and nature of the applicant's criminal history and a medium risk of recidivism, the Australian community would expect to be protected from him in the future and that he would be removed from the country.  However, this does not obviate the necessity to take into account the secondary considerations.

8. There are a number of secondary considerations, although one on its own cannot outweigh a primary consideration.

9. In considering the applicant's ties to Australia, while he does not have any family here, nor does he have any business ties, he has lived in this country for around 14 years. Under Section 200 of the Migration Act a person is only liable to deportation if they commit a deportable offence within the first 10 years of residence. This shows that the Parliament set a definitive cut-off period outside of which a person's ties to Australia would be deemed to be too strong and too entrenched to justify deportation. No such limitation exists under Section 501.

10. Whilst the Tribunal must pay heed to the Federal Court decision of Minister for Immigration and Multicultural Affairs and Gunner (1998) 156 ALR 306 and accepts that the Sections provide two different sources of power to the Minister, the legislation must be read in its entirety. In assessing a person's ties to Australia if, under Section 200 ten years residence is considered significant, then the 14 years the applicant has resided in Australia must be given due weight. As such, merely on residence, the applicant's ties to the Australian community are strong. He also has a number of friends who would suffer emotional hardship if his visa were to be cancelled.

11. The applicant has no family members in Australia and is not supporting a member of the Australian community financially either.  The applicant does have a current debt to repay to social security.  However, that Department would still be quite able to recoup that debt even if the applicant's visa were to be cancelled.  The applicant is also wanted in New Zealand for a breach of the Bail Act in relation to a charge of cultivation.  His remaining in Australia is assisting him in evading this charge.

12. If the applicant were returned to New Zealand, he would suffer some hardship.  However, he has re-commenced contact with his father in that country and while the applicant may not receive financial support from his father, it is at least a point of contact in that country.  New Zealand has a well-developed social security system which, as a New Zealand citizen, the applicant would be able to avail himself.  Further, the applicant gave evidence that he has extensive vocational experience and has never had difficulty obtaining work, despite his criminal record.  As such, the extent of hardship he is likely to suffer on return to New Zealand will be short-lived.

13. Therefore, both the primary and secondary considerations are weighed against the applicant. While the crimes committed by the applicant are not individually of the worst kind seen by this Tribunal, they are certainly extensive. Although the applicant has lived here for 14 years, any positive contribution the applicant has made to the Australian community has been more than counter-balanced by what he has taken from it. It is the Tribunal's view that the applicant has trespassed on the good will of the Australian community for long enough and, given the risk of recidivism, the Australian community should not be expected to give him yet another chance. Therefore, the Tribunal is not persuaded to exercise the discretion under Section 501 of the Migration Act in favour of the applicant.

14. For the above reasons the Tribunal affirms the decision under review.

    I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:         Denise Burton
      Secretary

    Date/s of Hearing  27.11.00
    Date of Decision  30.11.00
    Rep. for the Applicant              Applicant appeared in person
    Solicitor for the Respondent    Mr P O'Higgins, Messrs Blake Dawson Waldron