Tirtabudi and Minister for Immigration and Citizenship
[2008] AATA 1106
•10 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2008] AATA 1106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3787
GENERAL ADMINISTRATIVE DIVISION )
Re Alvin Virli TIRTABUDI
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date10 December 2008
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]…………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – character grounds – applicant conceded character test – whether tribunal should exercise discretion to cancel the applicant’s visa – applicant has accumulated numerous convictions and terms of imprisonment – community protection and expectations considered – best interests of the children considered – primary considerations found to outweigh the best interests of the children and other considerations in this case – decision under review is affirmed.
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RELEVANT ACT/S:
Migration Act 1958 (Cth) (the Act): ss 499, 501
Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 44
CITATIONS
Re Tirtabudi and Minister for Immigration and Citizenship [2007] AATA 1905
Tirtabudi v Minister for Immigration and Citizenship & Anor [2008] FCA 414
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Gomez and Commonwealth (1988) 15 ALD 784
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Boucher v Australian Securities and Investments Commission (1996) 71 FCR 122
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Green v Minister for Immigration and Citizenship [2008] FCA 125
R v Henry (1999) 46 NSWLR 346
Tien Hung Vu v R [2006] NSWCCA 188, BC 200604589
Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Dumbrell and Department of Immigration and Multicultural Affairs [2007] AATA 443
Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935
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OTHER AUTHORITIES
Direction No 21
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REASONS FOR DECISION
10 December 2008
Professor GD Walker, Deputy President
Basic facts
1. This application comes before the tribunal on remittal from the Federal Court. On 31 October 2007 the tribunal, following what I will call the first hearing, affirmed the decision under review to cancel the applicant’s visa: Re Tirtabudi and Minister for Immigration and Citizenship [2007] AATA 1905 (the first decision). That decision was set aside by Cowdroy J of the Federal Court in Tirtabudi v Minister for Immigration and Citizenship & Anor [2008] FCA 414.
2. The applicant Alvin Virli Tirtabudi was born in Indonesia in July 1971 and is a citizen of that country. He has previously been married but is now divorced.
3. He first arrived in Australia with his parents and sister at the age of nine years, 11 months on 23 June 1981 on a visitor temporary entry permit valid until 8 July 1981. He did not leave Australia on the expiration of the temporary entry permit and held no authority to remain in Australia until 26 September 1991, when a family temporary entry permit was granted to him. On 28 May 1993, his application to remain permanently in Australia was approved and he was granted a subclass 812 permanent entry permit after entry. On 26 August 1996, he was granted a class BB, subclass 155 resident return visa.
4. His parents remained in Australia illegally and were subsequently deported back to Indonesia in 1997 (first decision, para 8). Neither the applicant nor his sister has ever applied for Australian citizenship.
5. The applicant was first charged with a non-traffic offence on 19 December 2001, supplying prohibited drugs in an indictable quantity (not cannabis). On that charge, together with three other matters taken into account, he was sentenced to two years' imprisonment with a non-parole period of 18 months.
6. Subsequently he was convicted of a large number of other offences, leading up to his conviction and imprisonment on a large number of counts, mainly obtaining money by deception, on 1 May 2007. His complete record is as follows:
DATE
EVENT
20/07/1971
Applicant's date of birth
23/06/1981
Entry to Australia
19/12/2001
Applicant charged with:
1. Supply prohibited drug – indictable quantity (not cannabis);
2. Possess prohibited drug;
3. Supply prohibited drug;
4. Goods in custody of other reasonably suspected stolen;
5. Goods suspected stolen in/on premises (motor vehicle);
6. Goods in personal custody suspected being stolen (not motor vehicle);
7. Custody of knife in public place;
8. Possess prohibited drug (3 counts).
24/04/2002
Applicant charged with 'goods suspected stolen in/on premises (not motor vehicle).
28/10/2002
Applicant charged with:
1. Supply prohibited drug (2 counts);
2. Possess prohibited drug (2 counts) (whilst on bail for offence of 19 December 2001).
Applicant also charged in the Downing Centre Local Court Newtown with Possess Prohibited Drug (2 counts) and Supply Prohibited Drug (2 counts).
24/01/2003
Applicant granted bail.
07/04/2003
Applicant committed for trial in the District Court on the charge of 'Supply prohibited drug' laid on 19 December 2002.
27/07/2003
The Applicant breached his bail conditions and a warrant for his arrest was executed.
In addition the Applicant was charged with:
1. Obtain money etc by deception;
2. Larceny; and
3. Goods in personal custody suspected being stolen (not motor vehicle).
05/09/2003
Applicant granted bail in the District Court.
18/11/2003
Applicant charged with 'Goods suspected stolen in/on premises (not motor vehicle).
16/12/2003
Applicant charged with:
1. Obtain money etc by deception (2 counts);
2. Obtain money etc by deception.
26/02/2004
Applicant found guilty of charges laid on 19 December 2001, 28 October 2002 and 27 July 2003 and sentenced to 2 years imprisonment commencing 16 November 2003 concluding 25 November 2005 with a non parole period of 18 months concluding 25 May 2004 for the first supply prohibited drug charge and sentenced to 3 years imprisonment commencing 26 May 2004 concluding 25 May 2007 with a non parole period of 14 months concluding 25 July 2005 release subject to supervision.
01/04/2004
Applicant sentenced to 6 months imprisonment commencing 28 August 2003 for 'Stolen goods' charge of 24 April 2002.
23/06/2004
Applicant sentenced to 12 months imprisonment for the 'obtain money etc by deception' charge laid on 27 July 2003, charges laid on 18 November 2003 and 16 December 2003 and is sentenced to 12 months imprisonment commencing 27 July 2003 for the first count and 12 months imprisonment commencing 27 July 2004 non parole period with conditions - 9 months release subject to supervision for the charges laid on 16 December 2003.
21/09/2004
Court of Criminal Appeal dismisses appeal against sentences given on 26 February 2004.
25/07/2005
Applicant is released from prison.
28/10/2005
Applicant is charged with 'Goods suspected stolen given other not entitled (not motor vehicle)'.
17/06/2006
Applicant is charged in Central Local Court Hurstville with:
1. Obtain money etc by deception;
2. Possess / use a prohibited weapon without permit;
3. Goods in personal custody suspected being stolen (not motor vehicle) (2 counts).
4. Receive / dispose of stolen goods value less than $5,000.
26/06/2006
Applicant fined $565 for 'Stolen goods' charge laid 28 October 2005.
19/08/2006
Applicant is charged in Central Local Court Surry Hills with:
1. Goods in personal custody suspected of being stolen (not motor vehicle);
2. Obtain money etc by deception value greater than $15,000;
3. Obtain money etc by deception value greater than $5,000 and less than $15,000 (9 counts);
4. Obtain money etc by deception value greater than $2,000 and less than $5,000 (6 counts);
5. Obtain money etc by deception value less than $2,000 (18 counts);
6. Obtain money etc by deception (2 counts);
7. Make false instrument with value greater than $15,000..
01/05/2007
Applicant convicted of charges laid on 17 June 2006 (sentenced to 6 months imprisonment commencing 16 August 2006 for each charge to be served concurrently).
Applicant also convicted for charges laid on 19 August 2006 (sentenced to 6 months imprisonment for the first charge and 2 years for each subsequent charge with a non-parole period of 12 months - release subject to supervision, all sentences to be served concurrently commencing on 16 August 2006).
06/08/2007
Applicant's visa is cancelled.
07/08/2007
Applicant is granted a bridging visa until completion of custodial sentence.
15/08/2007
Applicant completes sentence but remains in custody for other charge of 'Supply prohibited drug' laid on 8 April 2007.
17/08/2007
Charges against Applicant withdrawn and case dismissed.
Applicant's bridging visa is cancelled, and the Applicant is transferred to DIAC custody.
Applicant is currently in immigration detention.
7. He also accumulated a large number of traffic offences resulting in his license being cancelled on three separate occasions and suspended once (G pp41-43). Two of the offences involved exceeding the speed limit by more than 45 kilometres an hour.
8. The applicant was sentenced to terms of imprisonment in 2001, 2004, 2005, 2006 and 2007. The total cumulative period of his prison sentences is approximately 23 and a half years.
9. On 18 July 2005 a delegate of the respondent sent the applicant notice of his intention to consider cancelling the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The notice gave the applicant until 2 August 2005 to provide reasons why the delegate should not exercise his discretion to cancel the applicant's visa.
10. The applicant's representative responded to the notice with written submissions dated 22 August 2005, which included statutory declarations from the applicant and his family members, as well psychologist reports.
11. On 4 August 2006 a second notice was sent to the applicant's representative, giving the applicant until 29 August 2006 to respond. No response was received and investigations revealed that the applicant's parole had been revoked and he had been imprisoned again to serve the balance of a sentence (of 11 months 7 days) that had been imposed in 2004.
12. On 28 March 2007 a third notice was sent to the applicant at Silverwater Correctional Centre in New South Wales. A letter sent to the applicant the following day granted him an extension of time until 11 May 2007 to respond.
13. On 17 May 2007 the department contacted the applicant, who advised that he had not responded to the notice because he had previously responded to the notice in 2005 and did not think it was necessary to respond again. The applicant was advised that he had the opportunity to explain any reasons he may have going against the cancellation of his visa. The time period in which he could respond was extended to 1 June 2007. The applicant responded to the notice by letter dated 31 May 2007.
14. By letter dated 29 June 2007 the applicant was informed by the delegate that she had become aware of further criminal convictions recorded against him on 1 May 2007 and that she would be taking these convictions into account when determining whether to cancel his visa. She invited the applicant to comment.
15. The applicant responded by fax on 12 July 2007 and stated that he had nothing further to add in support of his case.
16. On 6 August 2007 a delegate of the respondent made the decision to cancel the applicant's visa and provided the written statement of reasons dated 6 August 2007.
17. The applicant applied to this tribunal to review the decision to cancel his visa on 13 August 2007.
18. At a directions hearing a direction was made under s 44(6)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that regard would be had to the record of the tribunal proceeding leading to the first decision.
19. At the hearing, Mr Richard Killalea of counsel instructed by Mr David Cohen, solicitor of David H Cohen & Co appeared for the applicant, while Mr Lenny Leerdam, solicitor of DLA Phillips Fox represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant, together with and in his support, Terry Smith, Shaskia Gultom and Rondang Ambarita, gave oral evidence in person.
Issue
20. As the applicant did not dispute that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
21. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (a), as follows:
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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);
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22. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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23. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
24. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
25. The applicant relied on his statement of 17 July 2008, which was an attachment to the 10 August 2008 report of the psychologist, Mr Terry Smith (part Exhibit A11). In it he described his education, leading up to his completing the higher school certificate at Punchbowl Boys’ High School, his enrolment at a TAFE course in commercial data processing and his employment for seven years with Australia Post until he was retrenched in 2000. While at Australia Post he also attended TAFE in 1998 and completed certificate IV in information technology (application and web design).
26. He was married in 1993 but divorced in 1997. At that time he met a woman named Nana Soudarmaji who introduced him to “party drugs”, which led to his becoming addicted to ecstasy and amphetamines.
27. While in jail he had attended a few rehabilitation programs to deal with his substance abuse and had successfully completed them.
28. His involvement in illegal money transferring and credit card fraud with his cousin Randy Simbolon, his then girlfriend Legianti Skevos and their friends, had resulted in his second term of imprisonment. Police evidence proved that his computer and mobile telephone were used to commit the offences, but at the time he had not thought he was involved as he was not organising the offences or obtaining any financial gain. He continued:
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However, I have come to realize that by allowing them the use of my computer and mobile phone, by being around them and knowing that there was a crime being committed, I have actually involved myself and participated in a criminal act. I understand that I was an accessory.
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29. He was ashamed of his involvement in those offences and if he had known then what he knows now, he would never have put himself in that situation.
30. Since May 2006 he had been romantically involved with Shaskia Gultom, but three months into their relationship he was imprisoned. She has been his main support ever since and although she does not approve of his past behaviour, she sees that he has changed. He believed that their relationship would lead to marriage, but they were taking it one step at a time as he needed to prove to Shaskia parents that he had changed.
31. On his release he planned to find employment of any kind and eventually to gain a trade in the electrical field and later develop a position involving solar energy. Work within the mining industry was something he hoped for.
32. As regards his family, he wrote that “I have a sister, Rondang Ambarita. Rondang is my only sibling and the only member of my immediate family. My sister and I have always had a very close relationship”. He also had a good relationship with her husband and their children, who often visited him in jail and at Villawood.
33. Cancelling his visa would have a huge impact on his relationship with his sister and would jeopardise Shaskia, who had often mentioned to him that if he were to be repatriated, it would lead to her having an emotional breakdown as she could never imagine living her life without him.
34. He did not think that he could adapt to the Indonesian way of life as he had lived in Australia since the age of nine and had no family or social support in Indonesia. He was ashamed and truly regretful of his past criminal activities and if given a chance to prove that he could be a respectable member of the community would take that chance very seriously and do nothing to jeopardise it.
35. In an earlier statement dated 22 August 2005, he wrote that “My family migrated to Australia in 1981 and my parents divorced in 1998” (G p69). He had completely renounced drugs and gambling and had never experienced any difficulty in obtaining full-time employment. He had no-one to return to in Indonesia.
36. Subsequently, on 31 May 2007, he wrote to the respondent’s department a shorter letter stating that if allowed to stay in Australia he would live with his aunt Dona Munthe and his sister Rondang and her husband. He believed he had good work skills and was capable of committing himself to full-time regular employment. He had come to Australia at a young age and had spoken only English for the last 30 years, having virtually no Indonesian language skills (G p68).
37. In oral evidence, he said that at the previous hearing he had been nervous and could not express himself comfortably. He had gone blank. Asked why he had risked his visa by re-offending, he replied that he thought he was Australian all along and had never thought that he could be deported.
38. His conduct was the result of his drug addiction. He was not himself but had become reckless, selfish and focussed only on the next hit. He had lost all sense of perspective and was dominated by his habit. He had defeated his addiction through a drugs program and his mind became clearer.
39. His 2006 convictions relating to credit cards and money transfers arose from his living in the same place as the offenders and knowing what they were doing. He himself had never participated in their offences. He was ashamed of his conduct and would not re-offend. He had been free of drugs for five years and was rehabilitated.
40. He was in a loving and supportive relationship with Shaskia. Although he was at liberty only for three months after meeting her, she had visited him in custody and their relationship had grown stronger. He has ceased using drugs in jail in 2003 and had spent one year and one month outside after that. He had attended programs relating to job networks and similar matters but had not succeeded in finding employment. He would, however, accept any employment if he were released.
41. He had tacitly approved of the offences being committed by others in 2006 but had derived no financial gain from them, nor had he sought to benefit. He had pleaded guilty on the advice of his solicitor because he was present at the time the offences were committed.
42. Commenting on the statement in Exhibit A4 that on 14 August 2006 he had used the victim’s ANZ credit card to purchase goods at the Redfern BP Connect, and had been identified on video footage as doing so, he denied ever using the card but admitted that he had gone to the BP station with his co-offender Noel (Simanjuntak).
43. In relation to the drug dealing offence committed on 18 December 2001 for which he was sentenced on 26 February 2004, he said in cross-examination that the transcript of 11 October 2007 (ts1, pp134-137) correctly stated the facts. He had supplied the drugs only to a group of five or six friends.
44. His attention was then drawn to the sentencing judge’s description of his being observed in a car on the rooftop car park of the Hurstville Westfield mall. Two men had separately approached his car, leaned into it and then walked back into the mall. A subsequent search of his car discovered drugs, a set of scales, two mobile telephones, and $8,500 in cash (incorrectly referred to as $8,200) (G pp85-86). He denied that he had been dealing drugs in the car park.
45. Latham J also observed that while the applicant was at the police station, his mobile telephone rang 37 times with various messages, including “Lou is available tonight”, “need heaps, buzz me back”, “have you got any lollies?”, “how is availability?”, and a number of other messages and calls in a foreign language (G p86).
46. The applicant said that as he had not received the messages, he was not able to ask the callers what they meant. He admitted, however, that “lollies” meant ecstasy and that he was being asked if he had any. When then asked if he had been selling ecstasy, he replied that if he had known who the messages were from -- but did not finish the sentence. He then continued that “maybe” he had picked up some ecstasy and was going to the house.
47. As regards the $8,500 in cash, he had owed $3,600 or $3,700 for three months’ arrears of rent and had borrowed some money. When it was pointed out to him that three months’ arrears at the rent he had previously indicated would be about $1,300, he repeated his assertion.
48. He admitted that he had committed the offences for which he was sentenced on 23 June 2004 (see Agreed Facts, Exhibit R10; ts1, p148) but could not recall all the details. He denied that he had been the principal for the 2003 offences and denied any knowledge of how the co-offenders came to be in possession of the victims’ account details. Police executing a search warrant had found documents with the account records of other people, but he did not know where those details came from and did not know how his fingerprints came to be on the documents in question.
49. The applicant was then asked about the items found when police executed a search warrant in rooms 12 and 18 at the City Crown Motel, Surry Hills, on 18 August 2006. There they had found parole documents in the name of the applicant, a mobile phone, numerous mail items including bank statements, tax returns, group certificates and unopened mail in the names of various victims, an ANZ credit card in the name of one victim used to book the rooms, a number of New South Wales driver’s licenses, various credit cards and other items (Exhibit A2, pp5-6).
50. Police noted that at the time of arrest the applicant had keys to rooms 12 and 18. Items of his property were in the room and were located in the same area as the stolen credit card used to secure the booking. He denied ever being at the hotel even though he was seen there by police (Exhibit A2, p6).
51. The applicant in cross-examination said he knew the hotel rooms had been searched but had not booked the rooms and had never been to the hotel. He did not know how the mail items and bank statements came to be there. He then said he had simply visited the room or rooms and left his parole papers there. He repeated that he knew what his co-accused were doing and had tolerated it, but had not known that he was involved. Later he realised that he was implicated because he had allowed them to use his computer.
52. He said that he did not speak Indonesian fluently, although he had undertaken an HSC course for it and “did alright”. Mr Leerdam pointed out to him that he had done better than that, having been credited with outstanding achievement, being in first place for two successive years and receiving a Department of Education congratulatory letter. He acknowledged that he had and that his Indonesian was good, but repeated that he was not fluent in the language.
Aspects of the applicant’s evidence
53. The applicant's evidence contained many unsatisfactory features, including the following:
(a)The applicant contradicted his evidence or other evidence adduced by him. For example:
(i)In relation to the 2006 offences covered by charge number H28575839, he at first said at the remittal hearing that he had never been at the hotel and had not booked the rooms (transcript 2 September 2008 (ts2) p57). In the fact sheet he is recorded as denying ever being in the hotel (Exhibit A2, p6). But he had the keys to the two rooms in his possession when arrested and was seen there by police (Exhibit A2, pp5-6). A person in one of the rooms told police that it belonged to the applicant and to Skevos (the applicant’s ex-girlfriend) (Exhibit A2, p5). Then at the remittal hearing, he admitted visiting the hotel and said that he had left his parole papers there (ts2, pp57-58).
It should be noted that Exhibits A2, A3 and A4 are police fact sheets relating to the 2006 offences covered by charge number H28575839 that were tendered by the applicant's counsel at the first tribunal hearing (ts1, pp90-92). That is made even clearer by the fact that the fax header on the documents bears the name of the applicant’s solicitor, Mr Cohen. A related document is Exhibit R10 (previously R1) which is a statement of agreed facts relating to the 2003 offences, signed by the applicant’s legal representative (see ts1, p148).
(ii)At the remittal hearing, the applicant was asked about a paragraph in Exhibit A4 (numbered page 27 by the fax machine) recording that on 14 August 2006 the applicant was recorded on video using a victim’s ANZ card to purchase goods at the Redfern BP Connect. He admitted being present at the BP station but twice denied using the card (ts2, p38). But, as was noted above, Exhibit A4 was his own exhibit and was supplied by his solicitor. He had pleaded guilty to that offence, with legal advice.
(iii)In the interview for Mr Smith’s third psychological assessment prepared on 2 November 2008 (Exhibit A12) after the evidence and submissions had closed, the applicant revised his story about the 14 August 2006 episode with the ANZ card. He said that while he still did not remember the incident, “I think what must have happened is that my co-offender went into the service station and he was taking his time … he said the card would not work so I told him to try again and then I must have signed the docket” (p3). At the remittal hearing he had, of course, categorically denied using the card. He then told Mr Smith that, “I just forgot I signed one voucher … if I used the card once then why didn’t I use it at other times like on the 14th [ie, August] when the card was used five times” (Exhibit A12, p3). That, of course, is a rather a two-edged argument.
(iv)In his interview for Mr Smith’s third report (Exhibit A12), the applicant also acknowledged that he had directly benefited from the 2006 offences. He had received goods purchased from the proceeds, including shoes and clothing, and stayed in a hotel and received meals paid for by the unlawfully obtained money. That flatly contradicted his earlier evidence. He had twice told the tribunal at the first hearing that “I got no benefit out of [the 2006 offences]” (ts1, p68). He had told Mr Smith at the interview for the first report that he had not benefited from the activity (ts1, p127), indeed he was “adamant” about it (Exhibit A5, p4). He maintained the same position in his statement of 17 July 2008 (at p2).
(v)In his statement of 22 August 2005, he wrote that “My family migrated to Australia in 1981 and my parents divorced in 1998” (G p69). They actually came on visitor visas that they greatly overstayed and when pressed at the first hearing, he admitted that they had been deported back to Indonesia (ts1, p133). Further, his sister stated that their parents had never split up (ts1, pp19, 29).
(vi)He testified that his mother had died in December 2003 when he was in jail (ts1, p133). His sister, however, said that she had passed away in 1997. Both dates cannot be correct, even approximately, although it is not clear which one is false. The contradiction does, however, underline the general unreliability of the evidence for the applicant. As is noted at para 53(b)(ix) below, at the sentencing hearing on 26 February 2004, Latham J mentioned that the applicant’s mother had given evidence before her Honour (G p89).
(vii)He stated that he never thought he could be deported because he believed himself to be Australian all along (ts2, pp32-33). His sister, however, said that their parents had repeatedly urged them to apply for citizenship (ts1, p19). Again, he claimed that he had not taken the notice of intention to consider cancellation in August 2005 as seriously as he now did, but when further asked, conceded that he had lodged a statement in reply, asked his sister and then girlfriend to do likewise and engaged a lawyer to act on his behalf (ts1, p156).
(viii)In his statement of 17 July 2008 (part Exhibit A11), he said his sister was “the only member of my immediate family”. But his father lives in Jakarta and his sister said she has visited him, most recently in August 2007 (ts1, p29).
(b)The applicant offered numerous implausible explanations for his offences and the circumstances surrounding them, including:
(i)In relation to the 2003 offences, he claimed that he did not know how three incriminating documents concerning victims’ bank accounts found by police at his house and bearing his fingerprints came to be in his possession (Exhibit R10, para 33; (ts2, p52).
(ii)He denied that he had been selling drugs (to persons other than his housemates) in the Hurstville Westfield mall car park on 18 December 2001, but offered no explanation of the police observation that two men separately approached his car, leaned into it and then walked back into the mall (G p85). His explanation at the second hearing for receiving suspicious telephone calls at a time when he had drugs in his possession was that “maybe” he had collected some ecstasy on behalf of the others who were inquiring about it (ts2, p46). One can understand the learned Deputy President’s impression at the first hearing that the applicant might have been making up his evidence as he went along (ts1, p147).
(iii)He offered a convoluted excuse for his withdrawal of $200 from the account of Ms Morabe. At one point he admitted he was defrauding Ms Morabe (ts1, p149), but then claimed that her ATM card and PIN had been given to him by an unnamed friend of Ms Morabe who wanted the applicant to withdraw some money from the account but was too busy playing a poker machine at the time to do it himself. Not surprisingly, the learned Deputy President commented that, “We are in Gilbert and Sullivan territory here” (ts1, p150).
(iv)The applicant's account cannot be reconciled with the list of transactions involving Ms Morabe’s account listed in Exhibit R10, a statement of facts agreed by his lawyer. They include a further withdrawal of $100 from her Westpac account and another for $1,250, which he said he was merely “borrowing” because he needed money (ts1, p151). The statement of agreed facts notes that Westpac placed a restraint on the Morabe account because of the unauthorised transfers and withdrawals, returning funds from the unauthorised transfers to the victim’s account. Ms Morabe told Westpac fraud investigators that she had no knowledge of the fraudulent transactions. In relation to the two ATM withdrawals, still photographs taken from security footage depicted the applicant (Exhibit R10, paras 4-13).
(v)He claimed to have no idea how his DNA came to be on a purse containing methamphetamine (ts1, p143).
(vi)In relation to the goods in custody charge of which he was convicted on 26 June 2006 (charge number H25355168), he said that it involved a collection of antique gold coins that a Mr Huwedi had left behind when leaving shared accommodation. The applicant had pawned the coins because Mr Huwedi owed him money, but had been convicted because he had retained the entire proceeds of over $3,000, not merely the $1,200 that he claimed Mr Huwedi owed him for rent (ts1, pp157-159). It seems improbable that anyone would abandon such a valuable collection of gold coins (especially a person feckless enough to fail to pay his rent) and then disappear without a trace.
(vii)At the first hearing, he said that he had pleaded guilty to the offences comprised in charge number H28575839 of which he was convicted on 1 May 2007, 36 counts in all, on the advice of his barrister and solicitor but was actually not involved in the offences at all, other than by knowing that his cousin was committing them and by failing to stop him (ts1, pp73-74). He then added that his legal representatives had explained to him that some of the evidence would convict him on one or two of the counts (ts1, p74). It is highly improbable that a barrister and a solicitor would advise a client to plead guilty of 36 offences when there was cogent evidence against him on only two of them at the most.
In his evidence before the second hearing, he changed his position, saying in his written statement that “I have come to realize that by allowing them the use of my computer and mobile phone, by being around them and knowing that there was a crime being committed, I have actually involved myself and participated in a criminal act” (part Exhibit A11). He offered no reason as to why he did not come to that realisation earlier, especially in the course of discussions with his legal representatives leading up to the sentences on 1 May 2007. The revised version gives every indication of being a recent invention calculated to make his implausible explanation for his guilty pleas more credible.
(viii)Further, he offered no reason why he became allegedly “passively” involved in the 2006 offences (charge number H28575839) at a time when he knew he was under consideration for visa cancellation, conduct which his psychologist, Mr Smith, described as “mind-boggling”, peculiar” and “a conundrum”.
(ix)He told the first hearing that he had borrowed the $8,500 in cash found in his possession at the time of the 2003 drug offences from a friend named Mary Sunadio, who at the time of that hearing was in Indonesia (ts1, pp136-137). He had told Latham J, however, that the cash was attributable in part to a loan from his mother which, her Honour said, “has been confirmed before me by evidence from his mother” (G p89).
By the time of the hearing before Latham J on 26 February 2004, however, his mother was deceased, whether she died in 1998 as his sister said or in 2003 as he said. It would appear that somebody purporting to be his mother gave evidence, however, which may explain why he told Latham J that his father had “returned” to live in Jakarta but said nothing about his mother (G p88). At the first tribunal hearing, however, he said that the evidence before Latham J had been given by his aunt, not his mother (ts1, p153). At no time has he told the tribunal how much of the $8,500 was borrowed from his mother or Mary Sunadio or both.
54. In light of these difficulties in the applicant’s evidence, he can plainly not be accepted as a reliable witness.
Applicant’s supporting witnesses
55. Ms Shaskia Gultom had given evidence at the first tribunal hearing. She had tendered a written statement (Exhibit A1; ts1, pp34-36). In it she stated that she is an Australian citizen currently studying for a degree in primary education at the University of Technology, Sydney.
56. She had known the applicant for over two years, having seen him at church events, family gatherings and Indonesian functions. She did not formally meet him, however, until July 2005 and has been romantically involved with him since. To lose him would be devastating. He had been doing all he could to resume the correct path. He had attended anger management classes at Villawood and was attending church every Sunday. She believed this last experience had altered his outlook on life and that he would not re-offend.
57. At the hearing on remittal, Ms Gultom tendered a statement dated 15 July 2008 (part Exhibit A11). It stated that she had begun dating the applicant in May 2006. Before then their paths had crossed at family, cultural and church events.
58. She visits him as often as possible, originally three or four times a week but currently only twice a week because of travel difficulties. That had placed a great deal of strain and difficulty on their relationship.
59. Three months into their relationship the applicant was incarcerated and subsequently detained at Villawood. She was aware that he had been involved in illegal activities but believed he had learned his lesson and would not re-offend. They both have faith in their relationship and that it may eventually lead to marriage. They both know that that could only happen with the approval of her parents, and that obtaining it would require much patience and hard work.
60. She believes him to be generous and compassionate and that he feels regret and shame for his past actions.
61. The thought of losing someone so dear to her would cause her grief and heartache. She would be proud to have him as a fellow citizen.
62. At the hearing Ms Gultom said that they began dating in mid-May 2006 and would meet five or seven days a week until he was incarcerated on 19 August 2006. She was studying at the time, and he was not working. Sometimes he would meet her at the University of Western Sydney, Penrith, where she was then studying, and walk her to the train. She had met a few of his friends but did not at that time know that he was involved in criminal activities.
63. She learned of his antecedents when he was jailed and obtained more specific detail at the time of the first tribunal hearing. It had come as a shock to her, as she had not previously asked him about his record. She first learned that his visa might be cancelled in about September 2007.
64. At the remittal hearing, Ms Gultom said nothing about what she would do if the applicant's visa were cancelled. At the original hearing, however, she said that she would join him in Indonesia but would have to consider her situation after completing her studies. Although born in Australia, she was of Indonesian background and spoke a little of the language (ts1, pp37-39).
65. The applicant’s sister Ms Rondang Ambarita adopted her statement dated 10 July 2008 (part Exhibit A11) describing the closeness of her relationship with the applicant, adding that it extended to her husband and her three children, aged between three and a half years and seven months. It was hard for her to cope when he was in custody and she took the children to visit him every week at Silverwater and up to three times a week at Villawood.
66. If he were to leave the country it would have a huge impact on her children as they had grown up to believe that their uncle would always be there for them, and their bonds would be severed.
67. The applicant had expressed great regret for his criminal activities and felt he had wasted the most important years of his life. He had learned a valuable lesson and was adamant that he would not re-offend as he would not jeopardise his life and his chance to remain in Australia. It would be very difficult for her to accept her brother’s removal to Indonesia and she would be emotionally effected and possibly depressed because of it.
Psychological evidence
68. A forensic psychologist, Ms Kerry Watson, prepared a psychological assessment of the applicant for his lawyers on 30 September 2003 (G pp93-100). She outlined his happy and stable family background and noted that he was currently involved in a relationship that began in 2001 and expressed the intention to marry his current partner. After outlining his drug and criminal histories, she noted that he is of above average cognitive capacity and that on psychometric assessment, he proved to be an individual with a history of acting out behaviour, most notably inappropriate maladaptive behaviour, criminal activity and drug abuse. There was a direct causal relationship between his substance abuse and his criminal history. In her view further imprisonment would do little to rehabilitate him and what he required was continuing rehabilitation and therapeutic treatment and supervision.
69. A further report, prepared by Ms Elizabeth Collins for the applicant’s migration consultants and dated 18 August 2005 (G pp101-104), assessed him as being at low risk of future criminal behaviour. He was aware of the consequences of his behaviour and regretted the choices he had made. He had developed strategies for saying no to drugs.
70. Ms Collins, psychologist with Vision Phoenix Consultancy, concluded that the applicant had a strong support network that included family as well as long-standing friends. He was in a stable relationship (presumably with Legianti Skevos at the time) and planned to marry in a year’s time. His girlfriend was employed and completing a part-time university degree that year. She recommended that he be allowed to retain permanent residency in Australia.
71. Mr Terry Smith, clinical psychologist of South West Sydney Psychological Services, prepared two reports on the applicant, one dated 29 September 2007 (Exhibit A5) and the other 10 August 2008 (part Exhibit A11). In the former, after outlining the applicant’s history, Mr Smith concluded that there seemed to be two discrete periods of offending in his life, the first being a three-year period when he was dependent on amphetamines, but ended because he was able to overcome his addiction.
72. The second began after he was released on parole in 2005. He argued that he was culpable but that his actions were passive. He formed no intention to act anti-socially, nor did he, but was closely associated with those who did. “Thus any current Risk Assessment of Mr Tirtabudi is a bit of conundrum. On the one hand he does not deny responsibility for his actions but his actions suggested a tolerance of anti-social behaviour and this is cause for concern. In fact the Risk Assessment using the STATIC-99 elevated his categorisation from the “low” to “low-medium” range because of this fact” (p6).
73. On the other hand, consideration of the dynamic variables leading up to his offending showed that his only possible risk factor was denial, not about his actions but about the broader context of his living circumstances. “On the whole, the risk assessment of this man reveals a person of quite low risk of recidivism” (p7).
74. Mr Smith's second report dated 10 August 2008 was based on an interview at Villawood on 4 August 2008. No tests were administered in the course of it.
75. The applicant said he had not consumed any illicit substance for five years. Asked to explain why he had risked his future in Australia by his continued offending after his release from custody, he replied, “it all seemed unreal to me … I saw myself as an Australian because I had been here so long and it did not compute that I could be sent to a country I did not even know … Maybe I saw it as a harmless threat (ie, of deportation) because I felt I was an Australian, I do not know” (p3).
76. As regards offending on parole, he said “I had to plead guilty because I was with them when they did it; I saw myself as an accessory” (p4).
77. Mr Smith wrote that his conclusions remained unchanged from those in the earlier report and that overall the risk of re-offending was in the low category. He acknowledged that the applicant's offending after serving his jail sentence and being warned about his immigration status was “peculiar”, but he did not dispute the applicant’s rationalisation of the 2006 offences. He continued:
…. Until recently the idea that he would be deported has seemed to be an incredulous [sic] one for him. …
… The current processes have so profoundly impacted upon him that the chance of reoffending it is considered to be miniscule [sic] (p5).
78. At the hearing Mr Smith acknowledged that the applicant's recidivism risk was “horrendous” on statistical factors but could be considered to be lower in relation to the second period because he was no longer using drugs.
79. Nevertheless, his 2006 offences represented a “conundrum”. Mr Smith had asked him why he had tolerated the unlawful behaviour of his cousin and his partner, in reply to which he had “split hairs” and said that as he had done nothing, he was not guilty. Mr Smith thought it was “mind-boggling” that he would risk visa cancellation by being present while criminal activity was taking place.
80. He accepted the applicant's account of his sale in 2005 of a gold coin collection that did not belong to him. He had said he had sold it to reimburse himself for a debt that he was owed, but had retained the whole proceeds, not only the sum that he was owed. Mr Smith did not think that offence pointed to a recidivism risk, although it was “awkward” as he should have obtained advice before acting, but he had not acted criminally.
81. Mr Smith repeated that the dynamic factors in the applicant's favour outweighed the static factors. The 2006 offences were not drug-related. As he had offended only from the age of 30 (apart from traffic offences), he had been pro-social before then. When asked if the traffic offences were significant, he acknowledged that they showed a disregard for “minor traffic laws”.
82. He acknowledged that his 2008 report was based on accepting everything the applicant had said at the interview but stressed that he had pointed out to the applicant that if he did not tell the truth, he would be found out and his application would be likely to fail.
83. Mr Smith conceded that in relation to the 2003 offences, the applicant was an active participant and that they showed a pattern of identity fraud. The issue, however, was whether the applicant had relapsed in 2006, and Mr Smith accepted that he had not. He had warned the applicant to tell the truth and could only report what he had been told. He had not, however, asked him about the occasion on which he was recorded on video as using someone else’s ANZ card, and by that omission had been “in deficit on that” (ts2, p18).
84. He could not recall the details of what the police had found on their search of the two hotel rooms, but he had asked the applicant about it and the applicant had said the items belonged to others. Mr Smith said he thought the applicant was splitting hairs in that regard.
85. Mr Smith acknowledged that the evidence in his hands before the interview had raised doubts about the applicant’s recidivism risk and that he had not mentioned those doubts on page 5 of his August 2008 report, but repeated that he had told the applicant that any lie would become evident. If the applicant’s account were false, however, that would indicate attitudinal problems that would add to the static factors indicating an elevated recidivism risk.
86. The applicant was possessed of intelligence and insight above the average, Mr Smith said. Impression management to present a positive image to gain advantage could be a factor. He agreed that that might indicate a need for robust testing, but said he had told the applicant that any falsehoods would be exposed. He had not, however, performed any testing.
87. Any recidivism in relation to offences of dishonesty would show a higher recidivism risk, but only if dishonesty were present in his history up to the age of 30. The risk would be measured by his character up to that age. If he had shown signs of dishonesty before then, it would be a cause for concern because the tendency would continue after he ceased using drugs.
Mr Smith’s third report
88. After the evidence and submissions were closed, the applicant applied for leave to introduce a third psychological assessment by Mr Smith prepared on 2 November 2008. The respondent opposed the application.
89. The principles relating to the re-opening of hearings to admit fresh evidence were stated in Re Gomez and Commonwealth (1988) 15 ALD 784 at 785 when the tribunal said that such evidence should be admitted only when it is so material that the interests of justice require it, and the evidence if believed would probably affect the result and could not by reasonable diligence have been discovered before. A matter should not, however, be re-opened merely to permit a party to fortify evidence adduced in the first instance by calling witnesses who might easily have been made available before.
90. Other authorities indicate that the interests of justice provide the only real guidance: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128, Boucher v Australian Securities and Investments Commission (1996) 71 FCR 122.
91. There is a need for finality in proceedings and in the present case it could not be suggested that the applicant had not had an adequate opportunity to present his evidence. Nevertheless, in view of the potential seriousness of the possible outcome of these proceedings for the applicant (and bearing in mind that the decision under review has already been the subject of one Federal Court appeal), I decided to admit the evidence and to hear the additional arguments relating to it.
92. Mr Smith stated that he had interviewed the applicant on Villawood on 1 November 2008. In the course of the interview the applicant denied actively participating in any of the fraudulent actions in 2006 except the one on 14 August at Redfern BP Connect.
93. He now acknowledged that he had directly benefited from the fraudulently obtained money, receiving hotel accommodation, goods and meals knowing that the money was illegally obtained, but denied receiving cash. He had pleaded guilty to some of the charges because he was offered an advantageous plea bargain.
94. The applicant claimed he could still not recall the offence of 14 August 2006 at the Redfern BP Connect but conceded that “I must have done it because there is footage of it … I think what must have happened is that my co-offender went into the service station and he was taking his time … he said the card would not work so I told him to try again and then I must have signed the docket”.
95. Mr Smith concluded that “Mr Tirtabudi does not hold the view that he was not directly involved in the offending of 2006”, but argued that he did not perform the functions or actions fraudulently to obtain the money, but was cognisant of what was happening and benefited from the frauds. He did not take the position that he was not involved in the offence of 14 August 2006 but could not recall signing a credit card voucher. He hypothesised an account of what probably happened.
96. Mr Smith continued:
…
The position held by Mr Tirtabudi about his 2006 offending did not substantially change in this interview. … In interview he was more open about his knowledge of his co-offender's actions. He admitted he knew of their plans, accompanied them knowing their intention and knowingly receive[d] benefits by way of food, clothing and accommodation. … and on one occasion he signed a docket to expedite a stalled transaction (Exhibit A12, p4).
…
97. Mr Smith took the view that while the number of previous offences would raise the assessed recidivism risk at least to the moderate level, the dominant factor predicting risk would be the threat of deportation, which is a dynamic variable.
…
He certainly minimised his role of his offending in his prior accounts and as an historian he has lacked credibility. The assumed reason for this was that he has held a very strong disbelief (ie, denial) that he would ever be deported (ibid).
…
98. As he was now extremely aware of “the precarious nature of his current position”, the risk of recidivism, Mr Smith concluded, was low.
Applicant's submissions
99. When the hearing concluded on 2 September 2008, Mr Killalea indicated that he would prefer to make his submissions in writing. Written submissions received on 10 October began by clarifying that on 1 May 2007 the applicant was convicted on 37 counts of obtaining money by deception, three of goods in custody, one of making a false instrument and one of possessing a prohibited weapon, making 41 convictions for money matters apparently referable to the 46 offences listed in Exhibit A3. That list comprised 43 counts of obtaining money by deception, one of goods in custody, one of making a false instrument, failing to pay an innkeeper, the details of the offences being listed in Exhibit A4.
100. Thus the applicant was convicted of 41 of the 46 money matters arising in 2006.
101. The applicant then analysed the psychological evidence of Mr Smith, which has been summarised above, and noted that Mr Smith’s report was predicated on the assumption that the applicant had told him the truth about the nature of his involvement in the offences of which he was convicted and of his quitting drugs in 2003 and not relapsing. The applicant’s assertion that he had been free of drugs since 2003 was not challenged.
102. The critical issue for the tribunal in relation to any risk of recidivism was therefore whether the applicant had told Mr Smith the truth when he claimed that his re-offending related to his tolerance of and tacit approval for his ex-girlfriend and her partner, rather than himself, planning and executing an offence.
103. He was directly challenged in relation to only a few of the 41 offences of which he was convicted and denied that he had acted as alleged in relation to them, offering a different explanation for his actions in relation to them.
104. The sentence imposed for the 2006 money matters was about 10 months less than it might have been if he had been required to serve the balance of his original term of imprisonment. That was an indication that the court believed the applicant’s involvement in the matters to which he pleaded guilty was at a relatively low level, consistently with the claims he made to the tribunal.
105. Neither the applicant’s sister (Ms Ambarita) nor his girlfriend (Ms Gultom) knew the full extent of the applicant’s criminality, but he had told them no more than he thought they might need to know and they did not pursue any inquiry with him for more detailed information.
106. Ms Gultom had not only remained committed to the applicant, but her commitment had strengthened over time since the original hearing. His sister’s statement showed a strong bond between them and also between the applicant and his three nieces and nephews. The seriousness of the applicant’s offences was caused by his dependence on drugs at the time of committing the drug offences, and his involvement was limited to dealing with drugs between friends in a non-commercial environment. The 2006 fraud matters were serious but essentially comprised his assisting others, and he gained no benefit from their activities. He pleaded guilty and no additional term of imprisonment was imposed beyond the balance of the term he already had to serve.
107. In his original report, Mr Smith had put the applicant’s risk of recidivism as “quite low” and in the second report as minuscule.
108. The applicant conceded that his repatriation might deter others in like circumstances but submitted that community expectations would be influenced by consideration of the actual circumstances of his serious crimes and any mitigating factors, together with consideration of the risk of recidivism.
109. The applicant is well educated and has firm plans to obtain electrical trade qualifications. He has a long-term emotional bond with his sister, an Australian resident, and a strong relationship with an Australian citizen that might well lead to marriage.
110. The applicant stressed Mr Smith’s assessment of the risk of recidivism as minimal and his belief that the applicant recognises that any re-offending would now have catastrophic consequences for him.
111. He had been slow to appreciate that his visa status was at risk from his criminal activities, and his obtuseness in relation to that at the first hearing had been hard to fathom. That had now been explained and it was now clear to him that his criminal activity had adversely affected others. He is genuinely remorseful and understands that any further offending will result in visa cancellation. He therefore presents no actual danger to Australia and there is no reason to suppose that he will be a drain on the public purse.
112. In additional submissions (dated 12 November 2008) made in connection with the admission of Exhibit A12, the applicant conceded that he had obtained direct benefit from the proceeds of the 2006 offences and had pleaded guilty as part of a plea bargain but had not been directly involved except in the offence of 14 August 2006, which he had satisfactorily explained. The tribunal should therefore be satisfied of his integrity in relation to his involvement in the 2006 offences.
113. Mr Smith assessed the applicant’s risk of recidivism at moderate when measured solely against his previous offences, but considered the dominant factor to take into account to be the threat to him of being removed from Australia for any further offences. The applicant had only belatedly come to the realisation that he was subject to removal from Australia if he committed any further offences. On that basis the risk of recidivism was low.
Application of the Law and Findings of Fact
114. In this case the applicant did not dispute that he does not pass the character test because of his “substantial criminal record” within s 501(7) (ts2, p2).
115. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
116. Paragraph 2.3 sets out the primary considerations:
…
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
117. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (l), serious theft, including white collar crimes. The sentence imposed is an indication of seriousness: para 2.7. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
118. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
119. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(a) that the distribution of illicit drugs is to be treated as very serious.
120. In this case, the applicant was sentenced on 26 February 2004 to two years' imprisonment for supplying an indictable quantity of a prohibited drug (not cannabis) on 18 December 2001, together with other offences. On the same date he was sentenced to three years' imprisonment for a second group of supplying prohibited drug offences committed on 28 October 2002, the judge noting the aggravating circumstance that the second offence was committed while on bail (G p90). The sentences were partly cumulative as they related to discrete offences. The sentencing judge noted that the applicant was selling drugs to friends for a modest profit, which funded his own ongoing abuse of prohibited substances (G p87), but not for commercial profit in the ordinary sense (G p89).
121. The applicant accumulated numerous other convictions and was sentenced to terms of imprisonment on four separate occasions, in 2004, 2005, 2006 and 2007. His sentences to terms of imprisonment amount to a cumulative total of approximately 23 and a half years.
122. The applicant was first sent a notice of intention to consider cancelling his visa on 18 July 2005. About a year later, however, he was charged on 17 June and 19 August 2006 with numerous offences of dishonesty, for which he was sentenced on 1 May 2007 to two years' imprisonment with a non-parole period of 12 months on some charges and six months' imprisonment on others, all to be served concurrently.
123. No sentencing remarks relating to the sentences imposed on 1 May 2007 (referred to as the 2006 offences) are available. His explanation that his role was completely passive is implausible, inter alia for the reasons given earlier, and even Mr Smith plainly thought his explanation was on its face not easy to accept. In the absence of sentencing comments, the sentences themselves are to be taken as an indication of the seriousness of the conduct (Direction No 21, para 2.7), and terms of two years for several offences and six months for others suggest that the court considered that the applicant’s role in the offences was substantial.
124. At all stages the applicant has sought to minimise or deny his responsibility for the offences of which he has been convicted, but this tribunal must normally accept the correctness of all convictions and sentences: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at 325-326; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 215-216; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240, 243, 244-245. In any event, it is difficult to see how anyone could accumulate prison sentences totalling over 23 years without substantial criminal culpability.
125. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
126. The applicant submits that the gravity of his drug and related offences is mitigated by his dependence on drugs at the time, his involvement with drugs arising from his association with a woman involved in the club drug scene. Drug addiction is not, however, viewed as a mitigating factor in the sentencing of drug offences (R v Henry (1999) 46 NSWLR 346 per Spiegelman CJ at pp382-395; Tien Hung Vu v R [2006] NSWCCA 188, BC 200604589 at paras 59-64).
127. Indeed, the tribunal has taken the view that it may be an aggravating factor in s 501 visa cancellation cases: “When the use of drugs leads to the commission of other crimes the like of those engaged in by the Applicant a situation arises where the community has the greater need to be protected” (Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at para 34).
128. Drug addiction may, however, be “pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case” (Henry at p382).
129. The next issue for the tribunal to consider is the risk of recidivism, which Mr Killalea submitted was the central issue. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
130. The applicant’s case proceeded on the basis that the main issue was the level of the risk of recidivism (ts2, p2). That issue in turn was treated as pivoting on the evidence of the applicant’s psychologist, Mr Smith (ts2, p3). That may depict the tribunal’s role in relation to the question of recidivism risk unduly narrowly. Direction No 21, para 2.10 makes it clear that the tribunal’s assessment is to be based on consideration of a wide range of evidence, covering such matters as the person’s previous general conduct and total criminal history, and in particular:
(a)Whether the non-citizen has committed a further offence after having been warned previously about the risk of cancellation;
(b)A non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism; where there is a gap or gaps between convictions, the inference may be open that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)The extent of rehabilitation already achieved and the prospect of further rehabilitation.
131. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, the tribunal noted that the science of recidivism is imprecise but that such matters as recidivism statistics, evidence about personality defects, emotional or intellectual immaturity, or lack of control will also be relevant (at n133).
…
The task of the Tribunal is to identify the factors which led to the commission of the crime, to judge the effect of the period of incarceration upon the criminal and to assess the risk of recidivism accordingly. Having made its assessment of the risk of recidivism in a particular case, the Tribunal may find it necessary to take into account the fact that the techniques of prediction are clumsy and that the assessment of probabilities may be wrong.
…
132. Applying the factors mentioned in Direction No 21, the applicant was warned of the possibility of visa cancellation by the department’s notice of intention to consider cancellation dated 18 July 2005. He nevertheless went on to commit numerous further offences.
133. The applicant has multiple convictions and was sentenced to terms of imprisonment on five separate occasions, in 2001, 2004, 2005, 2006 and 2007. His earlier sentences apparently did not deter him from re-offending and at least once he re-offended on bail. The 2006 offences he committed on parole. He has had repeated chances to reform but has not availed himself of them.
134. Although the point was disputed in the original hearing, I will assume that the applicant, as he claims, has not used drugs since 2003. That is a positive step towards rehabilitation, but it proved insufficient as he committed numerous offences after that date.
135. The applicant consistently seeks to avoid responsibility for his crimes, diminishing his culpability or denying it altogether. For example, his June 2006 breach of parole report (Exhibit R6) notes that he “denies any wrongdoing in relation to these current matters and the previous matters”. He specifically denied the offence of obtaining a benefit by deception on 14 August 2006 when he “used the victim’s ANZ card number, at the BP Connect, Redfern, to purchase goods in the amount of $114.12. The accused has been identified on video footage as purchasing goods at the service station” (original decision, annexure E, p44, or p62 of the online version). He claimed at the second hearing that he had never used the card but remembered being in the BP station, but he did not know when, in company of his friend Noel Simanjuntak (ts2, p38). He pleaded guilty to that offence and was legally represented at the time.
136. In his submissions in reply, the applicant argued that annexure E of the original decision does not state that the applicant was relevantly identified on video footage as purchasing goods on another’s credit card, or that he used a “credit” card. Consequently, it was submitted, the respondent’s submission did not hold to the high level it asserted.
137. That is incorrect. The full fact sheet to charge number H28575839, tendered by the applicant’s own legal representatives at the first hearing and marked as Exhibit A4 records that “the accused used the victim’s ANZ Credit Card number 4564 [full number supplied] at the BP Connect, Redfern, to purchase goods in the amount of $114.12. The accused has been identified on video footage as purchasing goods at the service station”. The fact sheet says nothing about anyone else being present.
138. That demonstrably false denial negates his claim that he obtained no benefit from the 2006 offences.
139. On his version, his co-offenders had been the actual perpetrators of the 2006 offences. The main one was Randy Simbolon, who he said had returned to Indonesia (ts1, p68). Noel Simanjuntak was “still on the run” (ts2, p55). Legianti Skevos, Simbolon’s girlfriend and the applicant’s ex-girlfriend, was also involved, but the applicant said nothing about her whereabouts or whether she had been convicted for her part in the offences. She could presumably, however, have corroborated the applicant’s story if it were true, but the applicant adduced no evidence from her and offered no explanation for its absence.
140. In any event, in the interview for Mr Smith’s third psychological assessment (Exhibit A12), the applicant abandoned his denial of involvement in the 14 August 2006 offence, saying that “I must have done it because there is footage of it but I just can't remember it”. He thought “what must have happened” was that his co-offender could not make the card work so he told him to try again “and then I must have signed the docket” (at p3). That he was giving directions about the execution of the offence rather suggests that his was the controlling mind behind it.
141. He also admitted, contradicting his earlier evidence, directly benefiting from the 2006 offences through knowingly receiving accommodation, goods, meals, shoes and clothing purchased with the proceeds. He denied being given any cash “to buy things for myself”. That narrowly-worded qualification is immaterial and, as the respondent pointed out, may be meaningless in the context of credit card fraud which as often as not entails the acquisition of goods and services rather than cash.
142. In relation to one of the 2003 offences, he admitted that money had been transferred from a victim’s account to his account, and he had then withdrawn the money, using part of it to pay drug debts and the remainder to keep for himself (ts2, pp50-53). He blamed others when his fingerprints (and apparently no others) were found on personal financial documents belonging to his victims and claimed that he did not know how he had obtained the documents (ts2, p52).
143. Again, he claimed he had merely been “borrowing” $1,250 from Ms Morabe’s account, when she had no knowledge of the transactions and had never authorised them (ts1, p151; Exhibit R10, paras 4-13).
144. His explanation for the 2006 offences generally (including the occasion on which he was recorded on video as using a victim’s ANZ credit card to purchase goods) was that he had only allowed others to use his computer and had essentially simply been in the wrong place at the wrong time.
145. Those and the other denials, prevarications and improbable claims noted above cast doubt on the extent to which he has accepted responsibility for his offences. He argued at the interview for Mr Smith's third assessment (Exhibit A12) that his guilty plea to the 2006 offences indicated that he accepted responsibility (at p3). Earlier in the same interview, however, he said he had pleaded guilty to a number of the 2006 offences only because of being offered an advantageous plea bargain but was innocent of the charges. Mr Leerdam pointed out that in Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426 at paras 142-166, the tribunal had accepted that denial of responsibility for wrongdoing elevates the risk of recidivism.
146. His June 2006 breach of parole report also notes that his “response to supervision appears to be superficial” (R6).
147. Psychologists’ reports were prepared by Ms Kerry Watson and Ms Elizabeth Collins in 2003 and 2005 respectively. Both were favourable, Ms Collins assessing him as being at low risk of future criminal behaviour, and noting that he had a strong support network and was in a stable relationship (apparently with Legianti Skevos) and planned to marry within a year.
148. In the event, he proceeded thereafter to commit numerous offences while on parole. His stable relationship and marriage plans had lapsed and his former partner had become his co-offender’s girlfriend.
149. Mr Terry Smith’s report of 29 September 2007 expressed the opinion that the applicant was at quite low risk of recidivism, and his report of 10 August 2008 took the view that the risk was now minuscule.
150. The underlying assumption of the second report was that in the course of their interview the applicant had told him the whole truth. Mr Smith clearly had reservations about that, and repeatedly said that the applicant tended to “split hairs” when asked about his criminal responsibility.
151. Yet when asked what steps he had taken to check or assess the veracity of the applicant’s assertions, Mr Smith said only that he had warned the applicant that any falsehoods would be exposed at the hearing and would be detrimental to his case. That, of course, did not constitute objective testing. It was merely an opinion about the likely course of events before the tribunal, an opinion that an offender with prior experience in the courts and the tribunal might or might not share.
152. Mr Smith conceded that he stood “in deficit” by failing to ask the applicant about the occasion when he was videoed using the victim’s ANZ card at the BP Connect (ts, pp17-18). By so saying he was admitting that his earlier claim to have studied the 2006 fact sheets and particulars (Exhibit A11, p2; ts2, pp15-16) was incorrect.
153. He agreed that he had entertained “a fair bit of doubt” about the applicant's explanation for the 2006 offences but had nevertheless chosen not to express any of that doubt in his report (ts2, p22), in potential breach of the Expert Witness Code of Conduct by which he had agreed to be bound (see clauses 2 and 5).
154. Mr Smith's third report (Exhibit A12) implicitly acknowledges that the applicant had not previously told him the truth about the 2006 offences and in particular the offence of 14 August l2006 at the Redfern BP Connect. Those were material matters and Mr Smith’s conclusion that the applicant’s account of his 2006 offending “did not substantially change in this interview” is untenable. Mr Smith acknowledged that the applicant had “certainly minimised his role of his offending in his prior accounts”, but did not draw the obvious conclusion, merely opining that “as an historian he has lacked credibility”. But this case is not an exercise in historiography. These are matters of material facts directly in issue.
155. Mr Smith acknowledged that the applicant’s criminal history would raise his assessed recidivism risk “at least to the ‘moderate’ level”. He chose to treat that evidence as virtually irrelevant, however, because of the overwhelming importance he attaches to the applicant’s desire not to be repatriated. Even so, he no longer described the risk as miniscule. Also, as the respondent pointed out, he did not explain why, in circumstances in which the applicant was as recently as 2005 given exactly that warning by the department, that factor merited any weight.
156. In all, Mr Smith’s reports do not constitute highly persuasive evidence. In addition, it is to be noted that the applicant was earlier the subject of two favourable psychologist reports dealing inter alia with his recidivism risk. But shortly after Ms Collins’s August 2005 report, he went on to commit numerous new offences while still on parole.
157. In light of all the evidence, including his overall criminal history, his offending on bail and on parole, his re-offending after a specific warning about visa cancellation and the fact that he repeatedly gave false or misleading evidence before the tribunal, I conclude that, although he may have overcome his drug addiction, there is nevertheless a real risk that he will re-offend.
158. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
159. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
160. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
161. Although general deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it is a relevant consideration and must be taken into account in the present case.
Expectations of the Australian Community
162. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
163. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Many reasons for that, including economic, historical and other reasons, have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
164. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
165. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
166. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
167. In my view the community would expect that the visa of a person with such a serious and sustained criminal record, who re-offended repeatedly on parole after being placed on notice of possible visa cancellation and who shows little evidence of rehabilitation should be cancelled.
The Best Interests of the Child
168. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
169. The applicant has no children. At the first tribunal hearing, at which he was represented by counsel and a solicitor, he did not claim to be in a close relationship with any other children whose interests might need to be considered. At the hearing on remittal, however, he claimed to have a close bond with his sister’s three children, aged between seven months and three and a half years.
170. The applicant has been in custody currently since August 2006. While the children’s mother may have brought them to see him on visits, he has been incarcerated for the whole, or in the case of the eldest the greater part, of their lives. The two older children may have some awareness of him, but when he lived with his sister and her family in late 2005 and possibly early 2006, the eldest child would have been aged only about 12 months and the youngest was not yet born. It is impossible to believe that the relationship is a close one and I do not accept that the children’s interests would be adversely affected if he were repatriated.
Other considerations
171. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
172. The applicant has no business or similar connections with Australia that would be disrupted if his visa were cancelled.
173. His sister and aunt live in Australia, and his father lives in Indonesia. His sister would suffer some emotional hardship if he were repatriated but she does visit Indonesia from time to time and could see him in the course of such visits. Modern communications would also help her to keep in touch.
174. Ms Gultom did not know about his criminal record when she first started seeing him regularly in May 2006, but was aware that he had previously been addicted to drugs. When he was sent to prison (presumably in August 2006), she realised he had criminal convictions, but did not know until September 2007 that he was at risk of visa cancellation and did not learn the full extent of his criminal history until the first hearing in this tribunal (ts1, pp43-46). She believes their relationship could lead to marriage, but only if her parents give their approval. At present they oppose the relationship and Ms Gultom thought it would be “hard work” to persuade them to change their views.
175. The applicant explained that as Ms Gultom had never asked him about his criminal record, he had not told her. In the applicant’s written submissions it was argued that:
…
It might fairly be said, and it is so submitted, that Mr Tirtabudi told [Ms Gultom and his sister] no more than he thought they might need to know and they did not pursue any enquiry with him for more detailed information about the limited information he had given them (at para 36).
…
176. That manipulative attitude towards a young woman then aged 19 (she was 20 at the time of the first hearing (ts1, p37)) embarking on a relationship with a man almost twice her age says something about his character and also about the likelihood of his being rehabilitated.
177. In that connection it should also be noted that the applicant in a letter to the department dated 31 May 2007 (G p68) referred to his co-offender Legianti Skevos, not Ms Gultom, a “my partner”, when by that time he had been in a relationship with Ms Gultom for a year. Coupled with his generally picaresque history with women and the cynical concealment of his criminal past from Ms Gultom, that must cast some doubt on the sincerity and durability of his commitment to her. There is no doubt about the genuineness of Ms Gultom’s feelings, however.
178. Ms Gultom said nothing at the remittal hearing about her intentions in the event that the applicant's visa were cancelled, other than indicating that their relationship might lead to marriage. At the first hearing, however, she said she would probably join him in Indonesia if he were returned there but would have to finish her studies first and fully consider her position (ts1, pp38-39).
179. Although born in Australia, she is from an Indonesian background and speaks the language to some extent. Whether her intentions have changed since the first hearing is not clear. If the applicant's visa were cancelled Ms Gultom would suffer emotional hardship and would be faced with a hard choice between moving to Indonesia to be with him and remaining in Australia and attempting to conduct a long-distance relationship.
180. At the time she entered into the relationship she was unaware of his criminal history, but did know that he had previously been a drug addict and probably knew, or at least strongly suspected, that he had one or more drug convictions. At all events she knew that he was not a man of unblemished character. Overall, however, she is an innocent party and a tribunal would seek to avoid occasioning her any hardship. Direction No 21 states, however, that such other considerations may generally be given less individual weight than the primary considerations (para 2.17) and it is relevant that she chose to continue with the relationship after becoming fully aware of his criminal record at the first hearing (Re Dumbrell and Department of Immigration and Multicultural Affairs [2007] AATA 443 at para 35). As the respondent pointed out, the tribunal has previously considered that hardship to the applicant and the applicant’s family have not outweighed the primary considerations: Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935.
181. The applicant was placed on notice in May 2005 that his visa might be cancelled on character grounds but nevertheless proceeded to re-offend while on parole, being convicted of a large number of offences.
182. There is some evidence of rehabilitation. He has undertaken appropriate courses while in jail. I accept that he has not used prohibited drugs since 2003, and his abstinence in that regard removes a powerful contributor to criminal behaviour. Nevertheless, it is clear that even when free of drugs, as in 2006, he has re-offended. His overall position that his extensive criminal record is largely the result of a series of misunderstandings, unfortunate coincidences and events that he can no longer recall does not strengthen his claim to be a reformed character.
183. He is endowed with above-average intelligence and at one stage began tertiary studies, to which he says he intends to return if allowed to remain in Australia. Before his descent into crime he held a responsible position in Australia Post for some years. His prospects of employment must be quite reasonable. If released he would go to live with his sister and her family.
184. If repatriated he would experience some hardship as he has lived in Australia since the age of about 10. He has maintained contact with Indonesian culture, however, as Ms Gultom saw him at Indonesian functions before their relationship began. Over the years he has visited Indonesia several times, spending a total of about three months there (ts1, p132). He excelled in Indonesian language studies at school, receiving special recognition from the education department, and has been heard apparently conversing in that language. I do not accept his claim that he can only speak a little Indonesian.
185. In my view the primary considerations outweigh the best interests of the children and the other considerations in this case. The decision under review is affirmed.
I certify that the 185 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: …………………[sgd]…………………………………..
Renee Wallace, Associate
Date/s of Hearing: 2 September 2008
Date of Final Written Submissions: 19 November 2008
Date of Decision: 10 December 2008
Solicitor for the Applicant: Mr D Cohen, DH Cohen & Co
Counsel for the Applicant: Mr R Killalea
Solicitor for the Respondent: Mr L Leerdam, DLA Phillips Fox
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