Tirtabudi and Minister for Immigration and Citizenship
[2007] AATA 1905
•31 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1905
ADMINISTRATIVE APPEALS TRIBUNAL ) 2007/3787
)
GENERAL ADMINISTRATIVE DIVISION )
Re ALVIN TIRTABUDI
Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
TribunalMr Julian Block, Deputy President
Date31 October 2007
PlaceSydney
DecisionThe Tribunal affirms the decision under review.
..........................SGD....................
Mr Julian Block
Deputy President
CATCHWORDS
IMMIGRATION – visaex (on-shore visa cancellation) – cancellation of return visit visa on character grounds – criminal conduct – recidivism – deterrence – community expectations – hardship – decision of the Respondent is affirmed
LEGISLATION
Migration Act 1958: s 501, 500(6H), 500(6J)
Direction No. 21: pursuant to section 499 of the Migration Act 1958.
CASE LAW
Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
REASONS FOR DECISION
31 October 2007 Mr Julian Block, Deputy President PART A - background and introduction
1. The decision under review is that made on 6 August 2007 by a delegate of the Minister for Immigration and Citizenship (“the Respondent”) cancelling the Applicant’s Class BB, Subclass 155 Resident Return Visa. The refusal was made on the ground that Mr Tirtabudi (“the Applicant”) does not satisfy the character test set out in s 501 of the Migration Act 1958 (“the Act”).
2. The Applicant was represented by Mr R Killalea of counsel instructed by David H Cohen & Company, solicitors & attorneys; the Respondent was represented by Mr Scott Moloney of DLA Phillips Fox, lawyers.
3. The Tribunal had before it the G documents lodged pursuant to s 501G of the Act; together with tendered Exhibits as follows:
Exhibit A1:A statement dated 5 October 2007 by Ms Shaskia Gultom (who is referred to in these reasons as “Ms Gultom”);
Exhibit A2: A document entitled “Fact Sheet” produced by the New South Wales (“NSW”) Police;
Exhibit A3:A further document entitled “Fact Sheet” produced by the NSW police;
Exhibit A4:A document entitled “Full Facts (continued)” produced by the NSW Police;
Exhibit R1:A document which sets out details of some of the Applicant’s offences and convictions;
Exhibit R2:An Analyst Certificate issued on 19 February 2002 by the Institute of Clinical Pathology and Medical Research;
Exhibit R3: It is noted that there appears to be no Exhibit marked R3;
Exhibit R4:A report dated 3 November 2005 by Independent Diagnostic Services Pathology;
Exhibit R5:A case note report produced by the NSW Department of Corrective Services;
Exhibit R6: A document dated 29 June 2006 entitled “Breach of Parole”;
Exhibit R7: A document entitled “STATIC-99 Coding Form”; and
Exhibit R8: The STATIC-99 Coding Rules Revised – 2003.
4. It is convenient by way of overview to include the “Facts” as set out in the Respondent’s Statement of Facts and Contentions dated 3 October 2007 as the Applicant’s Statement of Facts and Contentions dated 9 October 2007 (incorrectly entitled “Respondent’s Statement of Facts and Contentions”) adopted them. The “Facts” are contained in clauses 2 to 17 inclusive of the Respondent’s Statement of Facts and Contentions reading as follows:
…
FACTS
2The Applicant arrived in Australia on 23 June 1981 aged 9 years on a Visitor Temporary Entry Permit (TEP) with his family.
3His application to remain permanently in Australia was approved on 28 May 1993 at which time he was granted a Class BB, Subclass 155 Resident Visa.
4In December 2001 the Applicant was charged with a number of serious criminal offences. The Applicant was also charged with criminal offences in 2002, 2003, 2005, 2006 and 2007.
5The Applicant was sentenced to terms of imprisonment in 2004, 2005, 2006 and 2007.
6A complete listing of the Applicant's charges, criminal convictions and chronology is attached as annexure 'A'.
7A list of the Applicant's motor vehicle offences and chronology is also attached as annexure 'B'.
8The Applicant has been sentenced to imprisonment in relation to his criminal convictions for a cumulative total period of approximately 282 months or 23.5 years.
9On 18 July 2005 a delegate of the respondent sent the Applicant notice of his intention to consider cancelling (NOIC) the Applicant's visa under subsection 501(2) of 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.
10The Applicant's representative responded to the NOIC with written submissions dated 22 August 2005, which included statutory declarations from the Applicant and his family members, as well psychologist reports.
11On 4 August 2006 a second NOIC 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.
12On 28 March 2007 a third NOIC was sent to the Applicant at Silverwater Correctional Centre in NSW. A letter sent to the Applicant the following day granted him an extension of time until 11 May 2007 to respond.
13On 17 May 2007 DIAC contacted the Applicant, who advised that he had not responded to the NOIC because he had previously responded to the NOIC 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 NOIC by letter dated 31 May 2007.
14By 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.
15The Applicant responded by fax on 12 July 2007 and stated that he had nothing further to add in support of his case.
16On 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 8 June 2007.
17The Applicant applied to the Administrative Appeals Tribunal to review the decision to cancel his visa on 10 August 2007.
5. The Respondent’s Statement of Facts and Contentions includes two annexures, one marked ‘A’ in respect of offences other than traffic offences and the other marked ‘B’ in respect of traffic offences; they are attached to these reasons and marked Annexure A and Annexure B respectively.
6. Towards the end of the hearing, Exhibits A2, A3 and A4 were tendered by consent on the basis that their content (subject only to the deletion of references in Exhibit A3 to offences numbered 47 and 48) is true and correct. Exhibits A2, A3 and A4 are annexed to these reasons and marked as C, D and E respectively.
7. The Applicant’s Statement of Facts and Contentions contains a reference to a close relationship between the Applicant and his mother. The Applicant advised during the hearing that his mother died and this reference should correctly refer to his aunt.
PART B - broad overview
8. The Applicant came to Australia from Indonesia with his parents and his sister in June 1981 on a visitor's visa. His parents remained in this country illegally and were subsequently deported back to Indonesia in 1997. However, the Applicant obtained a residence visa, this being the visa which has been cancelled, and which is the subject of this application. The Applicant's sister, Mrs Rondang Virginia Tirtabudi Ambarita (referred to in these reasons as “Mrs Ambarita” or as “his sister”) also obtained a visa entitling her to reside in Australia. Neither the Applicant nor his sister have ever applied for Australian citizenship.
9. The Applicant was nine years old when he came to Australia. He was educated at Punchbowl High School in Australia. His evidence was that he obtained an HSC pass of nearly 400; there was no evidence before the Tribunal that he obtained so high a mark and the Tribunal has doubts as to whether that statement is true. A mark of this nature would have enabled him to go on to university; he attended but did not complete TAFE courses and in particular one in electrical engineering.
10. The Applicant was during a period of seven years, employed by Australia Post. He was a mail sorter and earning when he started with Australia Post, in 1993, about $33,000 per annum. He subsequently became a mail sorter leader and apparently exercising a supervisory role over other mail sorters, but the promotion was insubstantial; his earnings, so he said, increased by only about $50 per week.
11. The Applicant was made redundant by Australia Post after seven years of service. He has since then and when not in gaol, (and in broad terms) relied on Centrelink payments.
12. From and after December 2001, the Applicant has been repeatedly charged with and convicted of a very large number of offences. Those offences are set out in these reasons as Annexures A, B, C, D, and E. Put in broad terms, the offences in question fall into a number of categories and in particular:
● the possession and supply of prohibited drugs;
● goods in possession which had been stolen;
●fraud in general terms, and in particular including larceny and obtaining goods and money by deception;
● traffic offences, some serious; and
● an offence involving possession of a knife.
13. The Applicant has served terms of imprisonment. It may be noted that the cumulative total period in respect of his sentences is 23.5 years, although because a number of sentences were imposed on the basis that they were to be served concurrently, the actual period of incarceration is much less.
14. The sentencing remarks of her Honour Judge Latham in the New South Wales District Court on 26 February 2004 appear at pages 85-92 of the G documents. It is not necessary to set out her sentencing reasons in detail; however, a part of her sentencing remarks, and being those contained at pages 87-89 of the G documents (pages 3-5 of the remarks) read as follows:
…
He was cautioned, arrested and taken to the Marrickville Police Station. Again he declined to be interviewed. He was charged and refused bail at that stage. He has spent ninety days in custody referrable solely to these matters.
The prisoner also asks me to take into account four further offences on a Form One, three of which were committed on 18 December 2001, when coming to sentence on the first count on the indictment. It follows that the first offence is aggravated by the offences on the Form One which include three counts of possession and custody of a knife, whilst the second offence is aggravated by fact that it was committed whilst on bail for the first offence.
The prisoner comes before the court as a 32 year-old man with no prior criminal history. He is the only son of two children of Indonesian descent. He and his family migrated to Australia in 1980. His parents divorced in 1998 and his father has returned to live in Jakarta. He completed Year 12 at Punchbowl High School and pursued further studies at a Technical and Further Education College. He deferred a number of courses before completing a Diploma in Community Science, specialising in systems analysis and programming.
He was previously married and is now in a defacto relationship. He plans to marry his present defacto spouse. He intends to reside at the family home when released from custody and he intends to undergo, further study to assure his future employment. He was employed full-time by Australia Post for six years, but was made redundant in 2000. He was in receipt of a redundancy payout of something in the order of $60,000, which he spent within a year on gambling and drugs. He has also worked as a contractor for a graphic design company.
It appears from his employment history and from his evidence before me, that he has never had difficulty obtaining full-time employment in the past, that he is a person of some intelligence and that he is capable of resuming a law-abiding life in the future.
His addiction to Ecstasy in particular arose out of an association with a group of people who were in the habit of going to nightclubs on weekends and using drugs in the course of that recreation. His gambling and his drug use often went hand in hand. The prisoner gave evidence that he would consume about two Ecstasy tablets a day and more on weekends. His supply in the circumstances of these offences arose out of his need to finance his own drug use. He was, as it were, buying in bulk from a supplier with funds provided by his friends. He was in the habit of using scales to ensure that his purchases were bona fide and he was selling those tablets to friends for a modest profit of approximately $5 per tablet which then, as I said, funded his ongoing abuse of that drug.
In his evidence before me, he struck me as someone who was frank and open in his account of his dealings, the fact that he used scales and the origin of the monies which were found after his arrest on the first charge. In particular, part of those monies were said to be attributable to his purchase of drugs, part were attributable to a loan from his mother, which has been confirmed before me by evidence from his mother and his uncle and part as attributable to a loan from a friend whose existence has been confirmed by evidence but who was unavailable to attend court for that purpose.
…
15. It is apparent, having regard to her sentencing remarks, that the Applicant persuaded her Honour Judge Latham as to the fact that he was contrite and also as to the fact that (having regard in particular to her belief that he was no longer addicted to drugs) his prospects of rehabilitation were reasonably good.
16. It may be noted that her Honour Judge Latham referred to the fact that the Applicant’s parents had returned to Indonesia. She was apparently not informed of the fact that they had come to Australia as visitors and stayed illegally and subsequently been deported back to Indonesia. She also referred to the fact that the Applicant’s parents had been divorced; no mention of their divorce was made during the hearing and in fact the Applicant's sister categorically denied that they had ever “split up”. The evidence of the sister to the effect that her parents had not “split up” is contradicted by a statement in the Applicant’s witness statement to the effect that they were divorced in 1998.
17. In the years that followed, the Applicant has been charged with many further offences and on many occasions. Offences were committed while the Applicant was on bail and in consequence of which, his bail was revoked. Offences were committed after the Applicant had been released on parole and in consequence of which his parole was revoked and it became necessary for him to serve the relevant sentence in respect of which he had been released on parole.
18. It is relevant also to note that the G documents include reports by two psychologists; one being Ms Kerry Watson, dated 30 September 2003 (G documents pages 94-100) and the other by Ms Elizabeth Collins, dated 18 August 2005 (G documents pages 101-104). The Collins’ report is the more recent; it was given at the time when the Applicant first received a notice of intention to cancel his visa. It recommended that he be allowed to stay in Australia for the reasons set out in that report; it is annexed to these reasons at Annexure F.
19. The content of the Respondent’s Statement of Facts and Contentions under the heading of “Facts” (agreed to by the Applicant and quoted in these reasons at paragraph 4 above) sets out in stark terms that the Applicant first received a notice of intention to cancel his visa in July 2005. Through his then representative, Ms Chandrani Buddhipala, he made representations as to why his visa should not be cancelled. A second notice was sent by the Respondent on 4 August 2006 to Ms Buddhipala and the Applicant said that she did not send it on to him. A third notice was sent on 28 March 2007; in respect of this notice the Applicant considered that having replied previously, it was not incumbent upon him to reply further. On 29 June 2007 a notice in respect of additional adverse information was sent to the Applicant and on this occasion, the Applicant responded by letter addressed to Cheryl Allen (G documents page 63) reading as follows:
To Cheryl Allen
I received the document from you and I’m aware that you including my further charges. The last time I respond was after theese [sic] charges anyway. So I have nothing further to add. I hope my respond [sic] are good enough previously so therefore I could have a good outcome.
Thank you
Alvin Tirtabudi
20. This matter comes before the Tribunal because in August 2007, the Respondent did in fact cancel the Applicant’s visa.
21. Although the Applicant was married that marriage ended in divorce after three years. The period of three years was that specified by the Applicant; his sister said that the marriage lasted for five years. There have been other de facto relationships. The Applicant currently has a relationship with Ms Gultom although it cannot be categorised as a de facto relationship. His sister gave evidence at the hearing as to the closeness of her own relationship with the Applicant. Ms Gultom gave oral evidence. Mr Terry Smith, a psychologist, gave evidence as to the question of recidivism. It was always clear having regard to the Applicant’s Statement of Facts and Contentions that the most important issue would be that related to the likelihood or otherwise of recidivism although of course it would also be necessary to have regard to other provisions contained in Part 2 (Exercising the Discretion) of Direction No 21. The Applicant accepted having regard to his prison sentences, that he failed the character test.
PART C - the evidence of the Applicant’s sister
22. The witness statement of the Applicant’s sister, Mrs Ambarita appears in the G documents at pages 114-115; dated 21 August 2005 and it reads as follows:
I Rondang Virginia Tirtabudi Ambarita, of … solemnly and sincerely declare and affirm as follows:
1I am the younger sister of Alvin Tirtabudi.
2We share a very close relationship as we come from a family of two children.
3I have depended on Alvin for moral support throughout my life and we spend a lot of our family and social time together.
4Alvin is a person who is very loyal to both his family and friends, and has many friends here in Australia.
5Alvin is a hard worker and takes his job seriously in order to meet his financial commitments and needs. He has shown commitment in everything that he has done, whether it was in his studies or his work.
6I know Alvin to be an honest and trustworthy person.
7Alvin never committed an offence prior to him being charged on 18 December 2001 when he was 30 years of age. These offences were totally out of character.
8There were many contributing factors that may have caused this behaviour at the time due to a bitter divorce and being made redundant from his job of seven years at Australia Post.
9Alvin's offences all occurred between and 2001 and 2003 when I believe that he was involved with a bad circle of friends, some of whom used drugs frequently.
10Whilst Alvin was in the correctional centre, he took a rehabilitation course and had many counselling sessions to help him overcome his drug addiction.
11I believe that Alvin has learnt from his mistakes, has changed his ways and is now looking to start afresh.
12I and my family are willing to support him through this, and we have a strong and close relationship with Alvin.
13Alvin has lived in Australia since the aged of nine years old, and therefore it would be very difficult for him to adjust to the society and culture of Indonesia.
14My family and I intend to move from Melbourne to Sydney in or about October 2005 and to reside in the same house as Alvin.
15Due to my close relationship with Alvin, it would be very hard for me to be in another country to him as we depend on each other for moral and emotional support.
16It would be very sad for me to see my brother return to Indonesia.
17I respectfully request that you allow my brother Alvin to remain permanently in Australia as this is the only home he knows, having lived here for the majority of his life.
…
23. Mrs Ambarita confirmed the content of her statutory declaration. She said that she has a close relationship with the Applicant and lived with him after he married.
24. Mrs Ambarita was born in Indonesia in 1973 and came to Australia with her parents and brother, the Applicant. When her parents moved back (as she put it) to Indonesia in 1997, she moved in with her brother, and his then wife. Between 2001 and 2005 she lived in Melbourne having found employment there. In 2003 she married and now has two children with a third expected. As noted previously, the Applicant’s parents were in fact deported back to Indonesia in 1997.
25. Mrs Ambarita moved back to Sydney in 2005. She said that her husband and children moved in with the Applicant. To say that he moved in with her would have been more accurate. The house in which she lived was rented by her. The Applicant had in July 2005 been released from gaol, and she allowed him to move in with her. She said that rent was shared in that the Applicant contributed from his Centrelink payments. In fact the Applicant had moved in with her previously; between 1988 and 1999 and after his marriage failed, he and his then girlfriend moved in with her.
26. Mrs Ambarita rented a house in Sydney on her return from Melbourne in 2005; the Applicant on his release from gaol moved in to that house. There were at that time other occupants of the house; being her aunt and a cousin named Randy Simbolon (who is referred to in these reasons at “Randy”). Randy was according to her evidence detained in consequence of criminal charges in July 2006 and he subsequently left Australia. It would appear that he too was deported back to Indonesia.
27. Mrs Ambarita said that she and the Applicant were “always very close”. They were members of a “close-knit family” until her parents went back to Indonesia. When asked whether her parents had “split up”, she denied that this had occurred.
28. When asked as to the Applicant’s criminal history, she said that “he was influenced a lot by a bad crowd”. She also said that he was a “senior mail officer” who was made redundant after seven years. When asked if he had held a responsible position, her answer was “he held a responsible job there”
29. During the periods when the Applicant was in gaol in Cessnock and while she was living in Melbourne, she saw him when she could; this occurred about once in every three months. She said that after she returned to Sydney, she visited the Applicant in Silverwater and subsequently in Villawood much more frequently.
30. Mrs Ambarita was categorically asked what the effect would be if the Applicant was forced to return to Indonesia. She said, “it would destroy me”. She said that although her father is in Jakarta, communication with him occurs rarely, her mother having died..
31. When asked to be more specific as to the absence of her brother “destroying her”, she said that she depended on him and that he is her only family apart from her husband and children.
32. Mrs Ambarita said that if the Applicant was allowed to remain in Australia she would be prepared to allow him to live in her home. She said that he would need strong family support. There would be room also for his girlfriend if his girlfriend wished to live with him. The remainder of this Part C relates in the main to the cross-examination of Mrs Ambarita.
33. Mrs Ambarita said that when the family came to Australia they spoke Indonesian. The current situation is that she can still speak Indonesian but is no longer fluent.
34. Mrs Ambarita for the most part during her evidence denied any knowledge of the Applicant’s criminal activities. Mr Moloney proceeded to take her through her brother’s criminal convictions and in particular to those relating to drugs. Put in general terms, she denied any knowledge of any of them. She said that she would not want her children to come into contact with the drugs in question. Her denial of any knowledge of his criminal convictions is difficult to reconcile with her evidence that she and the Applicant were so close that he, the Applicant, confided in her.
35. Further questions on Mrs Ambarita as to the Applicant’s convictions elicited a number of answers to the effect that she did not know or did not remember. She agreed though that she acted as surety for him in 2006 and when reporting requirements were imposed. She was unclear as to the circumstances in which bail was revoked.
36. Mrs Ambarita did agree that she knew something of the Applicant’s more recent fraud offences but she denied that she knew anything of crimes committed while he was living with her.
37. Mrs Ambarita was cross-examined as to her parents. She said that they moved back to Indonesia as a pair in 1996 or 1997. She has visited Indonesia on three occasions and has seen her father in Indonesia. She said that her mother died in 1997. She also said that her father has never revisited Australia; (no mention was made of the fact that her father cannot legally come back to Australia having been deported from Australia).
38. I do not think it is necessary to go into further detail in regards to Mrs Ambarita’s evidence. She is a personable and presentable woman who has made a success of her life in Australia. She has achieved a certain educational standard having attained a diploma in accounting. Her devotion to the Applicant cannot be doubted, but it must be remembered that there have been extended periods when she saw very little of him. To say that his removal would “destroy” her was both melodramatic and difficult to accept. She tried in difficult circumstances to support her brother. When it was put to her that he has committed crimes repeatedly over a number of years, she replied that with the right counselling, he might realise “that it was not worth it”.
39. Mrs Ambarita agreed that it would be possible to communicate with her brother even if he were in Indonesia but said that it would be expensive. She did not apparently know of the fact that cheap internet telephone calls are available through organisations such as Skype.
40. Mrs Ambarita was referred specifically to clause 6 of her affidavit to the effect that she knows “Alvin to be an honest and trustworthy person”. She agreed that that statement was untrue.
41. In re-examination however, Mrs Ambarita said that her statement as to her brother’s honesty was true inasmuch as he had always been honest in his dealings with her.
PART D - the evidence of ms gultom
42. Ms Gultom is 20 years old and lives with her parents. She is a student at the University of Technology, Sydney and her studies will qualify her in a few years to be a primary school teacher. Her witness statement dated 5 October 2007 (Exhibit A1) reads as follows:
My name is Shaskia Gultom. I am an Australian citizen residing at … with my two brothers, mother and father since 1997. I am currently studying at the University of Technology of Sydney pursuing a bachelor degree in Primary Education.
I confirm that I have known Mr Alvin Tirtabudi for over two years now. We have crossed paths previously at church events, family gatherings and Indonesian functions; however, it was only in July of 2005 that Mr Tirtabudi and I formally met.
Mr Tirtabudi and I are now romantically involved. In spite of all that has happened he and I have remained together for 17 months. Our relationship began in May last year. Mr Tirtabudi to me is a warm, loving, caring, supportive and generous person. He will go to great lengths and effort to help those he loves, especially his family. His approachable and friendly persona helps him to adapt to every situation and environment. Overall, Mr Tirtabudi is a special person. He is a big part of my life and will be a big part of my future. Mr Tirtabudi is my partner and best friend. To loose someone so close and dear to me will only be devastating.
Due to Mr Tirtabudi's present situation, he has been doing all he can to get back on the right path. He has been attending classes for anger management at the Villawood Immigration Detention Centre. This program is voluntary and he has been attending for the last three weeks. No only this, but Mr Tirtabudi has also strengthened his faith in God and attends church every Sunday.
I believe that this last experience has altered Mr Alvin Tirtabudi's outlook on life. I believe he is committed to our relationship and I never expect him to find himself in trouble with the law again.
I am happy to provide further information if required.
Yours faithfully,
Shaskia Gultom
43. Ms Gultom was asked in respect of the third-last paragraph of her statement, what the Applicant was doing in order to rehabilitate himself and she answered that he is undertaking a course in anger management and that he is “rebuilding his faith”.
44. The evidence of Ms Gultom consisted to a very large extent of ”I didn’t know” answers. She said that she knew little or nothing of his criminal activities. The fact that she is 20 and he is 36 did not affect her feelings for him. When asked whether she would live with him she said that she would do so if her parents approved. When asked whether her parents knew of his criminal record, she said that they knew something but not very much. She has not told them that he is currently in Villawood but rather that he is in Silverwater.
45. The remainder of this Part D relates in the main to the cross-examination of Ms Gultom.
46. Following the Applicant’s release from gaol, Ms Gultom became emotionally involved with him in May 2006 having met him at family gatherings and Indonesian functions. She said that the Applicant has told her very little of his criminal activities. She has spoken to the Applicant’s sister about him and has been told that the Applicant has a gambling problem but not that he had or has a drug problem. However the evidence would suggest that she knew something about his drug activities. (See TS page 40).
47. When the Applicant went into prison in August 2006 he told Ms Gultom that he had been involved in a fraud but did not furnish any details.
48. Ms Gultom said that when the Applicant went into Villawood on 17 August 2007, he asked her for a character witness statement. She prepared her witness statement herself and typed it herself but did so some two months later. She said that the delay arose from the fact that she had commitments in respect of her studies and also was involved in teaching practical experience.
49. It is unnecessary to deal in detail with the cross-examination of Ms Gultom as regards the Applicant’s convictions. If her evidence is to be believed, she seems to possess some vague knowledge that he has been in gaol on occasions.
50. Ms Gultom agreed that she knew of the Applicant’s previous girlfriend, Legianti Skevos (who is referred to in these reasons as “Ms Skevos”). She said that she knew that Ms Skevos also gambled, that Ms Skevos and the Applicant got into trouble together and had been in custody together. She denied that the Applicant ever told her that he intended to marry Ms Skevos. She was referred to an affidavit by Ms Skevos dated 20 August 2005 (which appears at G documents pages 118-119) and in particular clause 8 reading as follows:
7. …
8.Alvin is now trying to get his life back together, and while in Gaol planned to get a job and continue his studies, and also starting our own family.
9.…
When asked whether this came as a surprise to her she said that it did.
51. Ms Gultom was next referred to a letter dated 21 May 2007 addressed by the Applicant to Alice Beattie (G documents page 68), reading as follows:
My name is Alvin Virli Tirtabudi and I am writing a reply to the notice of intention to consider cancelling my visa. I arrived in Australia with my family from Indonesia in 1981 and I completed my tertiary education, including postgraduate Tafe courses. In the late 1990's, my parent's marriage broke down and at around the same time, I also had to cope with the breakdown of my own marriage, and my redundancy from Australia Post. At this incredibly vulnerable time, I started a new relationship, and was unfortunately introduced to the party drug scene, and my life went spiralling out of control.
I am embarrassed reading my criminal history and am ashamed that I have left my family and the community down by sinking to such a low level. Whilst this is not my first custodial sentence, I believe that this current sentence has truly provided me with a wake-up call for me to get my life back on track and live as a useful law abiding citizen.
If allowed to stay in Australia, I will live, upon release, with my aunt Dona Munthe and my sister Rodang Tirtabudi and her husband. I believe that I possess good work skills and am capable of committing myself to full-time regular employment, and it is my intention, upon release, to immediately start actively searching for employment. I'm of the opinion that full-time employment is the key to assist me in turning my life around.
Visa cancellation would mean that I would be forced to return to my country of birth, Indonesia, as I came to Australia, at a young age and have only spoken English for the past 30 years. I have virtually no Indonesian language skills, which would obviously limit severely my employment opportunities and make day-to-day life in Indonesia extremely difficult.
Deportation would separate me from all my immediate family and my partner Legianti Skevos.
In closing I would beg that you do not cancel my visa, forcing a break up of my family, and give me an opportunity to change my life and thereby permit me to once again be a worthwhile, upstanding member of the community.
Yours Faithfully
52. Ms Gultom was asked whether she was surprised as to his response (in May 2007, long after she and the Applicant had become involved with each other) in that letter to the effect that Ms Skevos was his partner and the fact that he made no reference whatsoever to her, Ms Gultom. She said that her name was not mentioned because her parents had not been told of her relationship with him. She was not upset by the reference in that letter to Ms Skevos as his partner. She admitted that her parents would be unlikely to approve of the Applicant.
53. When asked whether if the Applicant is obliged to return to Indonesia would she join him there, Ms Gultom said that her decision would have to await the completion of her studies.
54. It is not possible to place much weight on Ms Gultom’s evidence. It must be remembered, in particular, that the extent of her acquaintance with the Applicant outside gaol or detention is of short duration.
PART E - The evidence of the Applicant
55. There are two documents in the G documents which were treated as witness statements by the Applicant. They consist of his statutory declaration dated 22 August 2005 (G documents pages 69-71) and his letter to Ms Beattie (see paragraph 51 above). His statutory declaration reads as follows:
I Alvin Virli Tirtabudi of … in the state of New South Wales do solemnly and sincerely declare as follows:
1I wish to make this statutory declaration to set out my personal circumstances and most sincere and genuine reasons as to why my visa should not be cancelled and the effect it will have upon my future if my visa was cancelled.
2I have been a resident in Australia since I was 9 years old. My family migrated to Australia in 1981 and my parents divorced in 1998.
3I have one sister who is also a permanent resident of Australia. I am in a de-facto relationship with Legianti Skevos who is a permanent resident of Australia.
4I have completed my primary, secondary and tertiary education in Australia. After completing my HSC I undertook post graduate TAFE studies. After completing one year of a "Mechanical Engineering Diploma I transferred to a "Electrical Engineering Diploma course of which I completed two and half years. As a result of stress and depression cause in my marital relationship I deferred my studies for about 6 months. However I completed a Diploma in "commercial Data Processing" in 1999 and also completed a TAFE Certificate of Information Technology & Word Design" of one year duration.
5In addition to the above I have also completed the flowing [sic] courses”
Relapse Prevention Course. Certificate awarded 2/9/04
Senior First Aid Certificate 14/10/04 - 13/10/04 from St John's Ambulance
Adult Education & Vocational Training institute Achievement Award –
Pre-Release Program awarded 8/6/05Food Hygiene Certificate awarded by TAFE 6/7/05
6I was also employed in a full time permanent position with Australia Post but was made redundant in year 2000. After I was made redundant I undertook a position as a “WEB Designer” for a period of 12 months.
7The breakdown of my marriage and my redundancy from Australia post [sic] and my involvement with the wrong company, led me to an involvement with drugs. As a result of my new relationship which started in 1997, I was introduced to the 'party scene'.
8It was in this scene that I developed an addiction to ecstasy leading to my criminal convictions sentencing me to 20 months gaol by her Honour judge Latham in the district Court on 26 February 2004.
9I realize that my drug use has significantly affected all areas of my life. I had no prior criminal history up until 2001. I was frank and open and made admissions and pleaded guilty at the first opportunity. I was given a head sentences [sic] of 2 years imprisonment but was given a non parole period of 18 months which commenced from 26 November 2003 and to expire on 25 May 2005. In relation to my second offence I was sentenced to a period of 3 years from 26 May 2004 to 25 May 2007.
10Accordingly I have now served the prison sentence from 26th July 2003 to 25 July 2005, one day less than two years in total.
11I have already completed a number of curses [sic] whilst I was in custody. My continuing rehabilitation and therapeutic treatment and supervision during the period I was in prison have assisted me greatly to get rid of my drug use. I have totally committed myself to rehabilitation and have recovered psychologically. I have completely given up the use if [sic] drug and gambling.
12I am determined never to return to the use of drugs. I am trying hard to find suitable employment and start a normal healthy life style. I am currently registered with the centre link [sic] and attending interviews.
13Inn [sic] the past I have never had difficulty in obtaining full time employment. My full time employment with Australia post [sic] for a period of 7 years proved that I am a hard working person and committed to my work. Most unfortunately I was made redundant and the break up of my marriage caused me severe depression. With a new relationship I commenced, I was involved in the use of drugs and which led to the court case.
14If my visa is cancelled I would lose every chance of starting up a normal healthy life. I have no where else to go. No one to return to in Indonesia. Australia in [sic] my home. It has been my only home for nearly 30 years.
15Cancellation of my visa would have a severe detrimental impact on my self [sic] and therefore I beg the department to consider r [sic] my personal circumstances and grant me one last opportunity to prove myself and that I would be a law-abiding person living a decent life in Australia.
I make this solemn declaration …
56. The Applicant said that he married in 1993 and that the marriage lasted three years; (as set out previously his sister referred to the duration of the marriage as five years). His sister lived with him for one year after their parents went back to Indonesia. After his marriage broke up he lived with a girlfriend and then after that relationship broke up, with his sister until she moved to Melbourne.
57. The Applicant said that his sister visited him about five or six times while she was resident in Melbourne and he was in gaol in Cessnock.
58. After he was released from gaol in July 2005, he went to live with his sister and her family in Beverly Hills; his aunt and cousin Randy were also living in that house at that time.
59. The Applicant agreed that he was detained in June 2006 and remained in police custody until August 2007 when he was removed to Villawood.
60. The Applicant said that he was close to his sister and that they “bonded” together. As to his convictions, he said that he furnished her with brief information only. As he put it “it was my mistake – I didn’t want to bother her”.
61. The Applicant said that he obtained a HSC of nearly 400 in 1989. He took TAFE courses, including one in electrical engineering, which were not completed. In 1993, and as noted previously in these reasons, he became a mail sorter at Australia Post, earning a salary of $33,000 per annum. As a team leader (which he became in 1996) he received an extra $50 per week.
62. The Applicant said that when he was first charged in 2001, he told his sister that he had been “charged with possession” of drugs and the “deemed supply of drugs”. He said that he obtained legal advice from a barrister who subsequently died in 2004. He also obtained legal advice when he was again charged in April 2002 with goods suspected of being stolen. Furthermore, he obtained legal advice in October 2002 when again charged with drug offences.
63. The Applicant agreed that he was granted bail in January 2003 having been in custody since October 2002. He agreed also that he was arrested in July 2003 because he breached his bail conditions having committed further offences. He was charged with larceny in respect of goods obtained by deception and he was kept in custody thereafter.
64. The Applicant agreed that he was charged in November 2003 with goods stolen and in December 2003 in respect of moneys obtained by deception. In February 2004 he was found guilty and sent to gaol. His sentence was longer but his non-parole period was 18 months.
65. The Applicant agreed that there were further charges in April 2004 and June 2004 in respect of stolen goods and moneys obtained by deception. In September 2004 an appeal was dismissed by the Court of Appeal.
66. The Applicant agreed that he was released on parole in July 2005. He agreed also that he breached his parole through his commission of further offences. He said that he knew that he would be obliged in consequence to serve the remainder of his sentence. When asked whether he was aware of this possibility when he committed offences while on parole he answered “I made the wrong decision”. He noted that the offences related to his cousin Randy.
67. The Applicant said that Randy was living with the family and he was “doing fraud”. When asked what exactly his cousin was doing, he said that Randy was using the identities of other people “in order to use their credit cards and to get their money”.
68. When asked how he knew what Randy was doing, he said that he knew because Randy was living in the house. However and when asked what he did about it he answered, “nothing”.
69. The evidence then revealed that the Applicant was charged with 48 counts of obtaining moneys by deception apart from charges referable to having goods in custody. A plea bargain was entered into and pursuant to which the 48 charges were reduced to 32; however the State did not seek a custodial sentence because he would have to serve the remainder of the sentence in respect of which he had been paroled.
70. The Applicant said that he had agreed to plead guilty to the 32 counts (referred to in paragraph 69 above) purely and only because of his knowledge of what his cousin was doing.
71. Mr Killalea next examined the Applicant as to his driving offences; he agreed that he had been convicted of a number of them and including 10 for speeding.
72. Mr Killalea next asked the Applicant to state why he expected the Tribunal to accept that his days of crime were over. He answered, “I realised that if I go back to Indonesia I will lose my Australian way of life”. When asked why he didn’t think of this in July 2005, he answered that at that time he was involved with Ms Skevos (G p118-119, see paragraph 50 above) and they were together involved in the commission of offences.
73. Again asked why he did not realise that he was in danger of losing his Australian visa in 2005 and when he first received a notice of intention to cancel his visa, he answered, “I thought of it as an intention to cancel”. “I replied and didn’t hear anything further”.
74. The Applicant agreed that after he was back in gaol he received a further notice of intention to cancel his visa and that this occurred in May 2007. His attention was drawn to the fact that he had previously received a notice some two years earlier. His answer was, “I made the wrong decision”. When asked whether he realised that there was a real possibility of his being removed from Australia his answer was that this occurred to him only when his visa was cancelled. He went on to say that he took the threat seriously when the visa was actually cancelled as opposed to a threat to cancel the visa. The Applicant, as I have noted, denied that he ever received the second notice of intention to cancel his visa.
75. The Applicant acknowledged that he had received the notices of intention to cancel. He was asked why he was able to say that he would not commit crimes again, or in other words to specify what had changed. His answer was “I lose my sister and I lose my partner”.
76. When asked about the drug convictions and in particular those related to supply, he said that he did not in fact supply drugs; he and a group of friends contributed money to a pool of funds to buy drugs and so that in effect, he obtained his own drugs at a lower price.
77. The Applicant was asked why he pleaded guilty to numerous counts and in particular in relation to crimes committed by Randy. He said that he did so on advice from Mr Cohen, his solicitor (and his solicitor in these proceedings) and his barrister Mr Glennan; (the Tribunal finds it difficult to believe that Mr Cohen would have advised a plea of guilty if the Applicant was not in fact guilty). The Applicant said that at the relevant time he owned a computer and a mobile phone and that the mobile phone formed part of the evidence.
78. The Applicant said that in July 2005 when he was released from gaol on parole, he went to live with his sister because he had nowhere else to go. He agreed that he told his parole officer that this was so and residence with his sister was made a condition of his parole.
79. The Applicant said that if he was allowed to stay in Australia he would seek work as a truck driver in the mining industry of Western Australia. He said that he thought that he could earn $75,000 per annum.
80. At this stage, the first days hearing was concluded. By agreement, the hearing was resumed on the second hearing day on the basis that Mr Terry Smith, a consultant psychologist, would give evidence first and would thus be interposed.
PART F - the second hearing day and the evidence of mr terry smith
81. At the commencement of the second hearing day, Exhibits A2, A3 and A4; (see in these reasons Annexures C, D and E) were tendered by consent.
82. Mr Smith is a clinical psychologist. He obtained a Master’s Degree in Psychology from Wollongong University in 1992 and he has been in private practice since 1991.
83. The transcript of the proceedings indicates that Mr Smith’s report dated 29 September 2007 was not formally tendered as an Exhibit. This was plainly an oversight and I have (after the hearing), treated it as tendered and as Exhibit A5.
84. I appreciate that this decision is somewhat lengthy but nevertheless and in view of its importance in respect of this decision, consider that Exhibit A5 be included in full in these reasons and is marked with the letter G.
85. Mr Smith acknowledged that he had been briefed by Mr Cohen and had been paid a fee; he also acknowledged that he had interviewed the Applicant comparatively recently and once only and then only for three hours, during part of which he had read the reports and documents set out in clause 1 of his report, and including reports by Ms Watson and that of Ms Collins (see Annexure F).
86. Mr Smith admitted that he had relied entirely on what the Applicant told him. By way of one example only he noted that the Applicant’s parents had separated within a year of their return to Indonesia. Neither the Applicant nor his sister said anything to this effect and in fact the Applicant’s sister denied that this was so.
87. Mr Smith acknowledged that he had not read the Applicant’s criminal record in full.
88. Mr Smith noted that the Applicant had completed TAFE training in electrical engineering within one year. The Applicant’s evidence was that he commenced but did not complete that training.
89. Mr Smith noted that the Applicant cannot converse in his native tongue. The Applicant spoke Indonesian only when he came to Australia and while he is no longer fluent, he is not without some knowledge of that language.
90. During the course of a lengthy cross-examination with which I need not deal in detail, Mr Smith accepted that the risk of recidivism is considerably higher than his report indicates and that a classification in the moderate to high range (utilising Exhibits R7 and R8) would be appropriate.
91. While I would not like this clause to indicate any criticism of Mr Smith, I do consider that in the light of the Applicant's extensive and repeated criminal history, Mr Smith’s investigations might, with advantage, have been undertaken in rather more depth.
PART G - the cross-examination of the Applicant
92. The Applicant informed the Tribunal as to the course he had taken in electrical engineering at TAFE; he agreed that he did not complete it. While at Australia Post he took a course in web design and at some point in time he had part-time employment in this area. Also while at Australia Post he worked part-time in a fast food store.
93. The Applicant was asked why with his qualifications he could not do better than achieve a post as mail sorter at Australia Post. He answered that his qualifications were not as good as they appeared to be.
94. The Applicant has visited Indonesia on a number of occasions over the years since he left Indonesia. He went to Indonesia in particular on his honeymoon to meet his former wife’s family. He said that he can speak Indonesian “a little” but he did not visit his father on his visits and said moreover that he did not know where his father is.
95. The Applicant said that he had lost his driver’s license “once or twice”.
96. Dealing with drugs the Applicant insisted that he did not ever deal in drugs but that he was a member of a group which bought drugs in bulk so as to obtain them at a cheaper price. The Applicant’s attention was drawn to Judge Latham’s remarks and in particular the references to numerous calls to his mobile phone, some in a foreign language. He said that he did not remember who called and that they might have been friends. As to messages left in a foreign language he said that they would have been Muslim friends calling at the time of Ramadan to wish him the Ramadan equivalent of a “Happy Christmas”.
97. As to cash found in his possession, he said that he borrowed $8,500 from a friend to pay rent because he was behind with his rent.
98. It was put to the Applicant that he tested positive for drugs when on bail and when in gaol; he agreed that this was so. It was put to him also that he failed a drug test on 27 October 2005 (Exhibit R4). He said that he tested positive only for a drug which was equivalent to Sudafed and which he was taking because he had the “flu”.
99. The Applicant agreed that he was charged with a drug offence in April 2007. He said that this was so because his DNA was found on a purse containing drugs. However, the charge was withdrawn, so he said, for lack of evidence.
100. I do not think it necessary for me to detail the questions and answers as to why the Applicant constantly re-offended. One answer will suffice. In October 2002, he was charged with drug offences after he re-offended while on bail. He said that “maybe at the time I should have think [sic] that, I shouldn’t get myself into more trouble”.
101. In July 2003, the Applicant was charged with obtaining money by deception. He said that an acquaintance borrowed $900 from him; that acquaintance transferred money (obtained by the acquaintance illegally) into his bank account. In respect of another charge of obtaining money by deception, he said that he found a wallet at a club in Circular Quay and while he retained the wallet, he did not (he said) use the club membership card contained in it.
102. The Applicant was asked whether he used a credit card belonging to someone else to obtain money. He said that he did, but the card was given to him by a friend to enable him to draw money for himself and that friend. The friend could not himself do so because he was busy playing a poker machine.
103. The Applicant was next asked as to the use of the internet to withdraw money from the banking accounts of other persons. He was referred in particular to amounts of $1,500 and $1,250 obtained from an account in the name of “Ibrahim”. He said that one “Randa” transferred the money into his account. He said that he was not responsible and that Randa should be asked why he did so. When asked why the money was transferred to his account he said that “Me and my friend, the one who knows Randa, borrowed the money from Randa”.
104. It was put to the Applicant that moneys illegally obtained were credited to his account and that he was stealing it. His answer was “That's what they said – I did the time for it”.
105. It was put to the Applicant that Judge Latham could have sent him to gaol for a much longer period and that she had been lenient with him because she believed that there were prospects of his rehabilitation. He agreed that Judge Latham’s sentence did amount to leniency.
106. The Applicant was next referred to the first notice of intention to cancel his visa. He said that his representative Ms Buddhipala replied on his behalf; (see in this context G documents pages 64-67).
107. It was put to the Applicant that in clause 12 of his statutory declaration, he said he was determined never to go back into drugs. He agreed that he knew that if his visa was cancelled, he would lose the right to remain in Australia and that he was being given a last opportunity. He was asked whether he meant what he said and he answered that he did.
108. The Applicant was next referred to a charge in October 2005 of being in possession of goods suspected of being stolen (not being a motor vehicle). He said that he sold a number of ancient coins to a coin shop and that he had no proof of where they came from. He said that, he obtained them from someone named Huwedi who gave them to him in lieu of rent, although the amount of $3,200 obtained on sale of the coins was considerably in excess of the rent owed. He said that he could not return the difference to Huwedi because he did not know where Huwedi was.
109. Although the Applicant admitted to having been addicted (but in the past) to drugs, he said almost nothing of another problem related to gambling. He was referred to Exhibit R6, a parole report as to breaches of parole in that he failed to attend two gambling sessions at the Wesley Mission. When asked why he failed to attend, he said that on one occasion he was too late, and on the other occasion, he attended a job interview instead.
110. After the first notice of intention to cancel his visa, the Respondent sent two further notices; one dated 4 August 2006, the other dated 28 March 2007. The Applicant said that he did not receive the former, which was sent to his representative who did not pass it on to him. As to the second notice, a file note in the G documents at page 58 reads as follows:
FILE NOTE.
Spoke to the client in prison about his NOICC. Client says that he received the NOICC but because it was his second one he didn’t think that he had to respond. I advised the client that as he breached his parole he might want to supply further documents as to any special circumstances as to why this happened. The client then suggested that he may get in contact with his previous migration agent about this matter. I requested that even if he did not want to supply any further documents, he would still need to send the blue form, signed, to show that he had received the NOICC.
I advised the client that he could have an extension till [sic] the 1st of June and if there were any problems meeting this deadline he would need to get in contact with his case officer Alice Beattie.
Tim Splatt
NCCC
17/5/2007
111. The Applicant said that he had pleaded guilty to a large number of obtaining money by deception offences even though they were committed by Randy because they were committed while Randy was living with his family. A sometimes confused explanation made it clear that Randy was the sole perpetrator, although it was not clear whether Randy did or did not use equipment belonging to him and including a computer and a sim card. He did say that some of the money obtained went to his former girlfriend who was charged with him but who received a good behaviour bond. He said that he was no longer in touch with her.
112. The Applicant was asked why he had not expressed remorse. His answer was “you never asked”.
113. In re-examination, the Applicant said that he had treated the notices from the Respondent with the respect that they deserved. However, he sees his detention at Villawood as his “wakeup call”.
PART H - analysis of the evidence
114. It is clear on the evidence that the Applicant has had numerous warnings and that he has not heeded them. The evidence before the Tribunal indicates that the Applicant is incorrigible.
115. Before he gave evidence I warned the Applicant in strong terms that it is of vital importance that he answers truthfully. I do not believe that his evidence before the Tribunal was, in important respects, truthful. In particular, his evidence as to his pleading guilty to offences committed by Randy cannot be accepted.
116. Ms Ambarita said in her witness statement (clause 7) that the Applicant’s offences were totally out of character. She said that they could be attributed to his divorce, to his being made redundant, and to his becoming involved with a bad group of friends; see paragraphs 8 and 9 of her witness statement. She said in clause 11 that the Applicant had learned from his mistakes and was looking to start afresh. Her witness statement was made on 21 August 2005; her optimism was clearly misplaced in that the Applicant was charged with further offences in October 2005 and August 2006. Mrs Ambarita was eventually constrained to agree (and refer TS page 33) that the Applicant was not an honest and a trustworthy person.
117. The evidence of Ms Gultom does not, as I have said, deserve much weight. Her evidence was that she has known him when not in gaol or detention for about 14 weeks that her parents do not know the true position and would not approve if they did. The Respondent contends that Ms Gultom was perhaps asked to provide a statement in support of the Applicant when Ms Skevos, who had previously written a reference, refused to do so after she was convicted of participating in the 2006 internet and credit card frauds and been placed under a good behaviour bond. (See TS page 164).
118. The evidence of Mr Smith is particularly important. He agreed, that it was difficult to estimate the likelihood or probability of recidivism having regard to a number of factors and including:
●the 'subjective' nature of the information being given to him to assess;
●the 'assumption' that the Applicant is telling the truth and the importance of being told the correct information by the Applicant;
●the error known as 'impression managing' or 'social desirability' in which the subject tells the report writer only information that they believe will be good for their case. Mr Smith agreed this was a 'very, very strong possibility'; and
●the fact that it was impossible to predict or guarantee a person's future behaviour due to the inherent nature of human beings.
119. Mr Smith agreed that his report was split into three parts:
●the 'structured clinical interview' in which he discussed various issues with the Applicant;
●the STATIC-99 instrument, a tool which formed the only objective evidence used in his assessment; and
●the personality test known as 'SLR-90R', a 90 question questionnaire completed by the Applicant in 15 minutes which effectively tells the interviewer that, at the time of the test, the Applicant was possessed of 'normal psychological' functioning or not.
120. In cross-examination Mr Smith agreed that his risk assessment (using Static- 99 test) is incorrect if it is accepted that the Tribunal is concerned with future offending of any kind as opposed to future drug offences; see generally TS page 110 to TS page 120. He agreed that the fact that a person’s past behaviour is a reasonable indicator of future behaviour is highlighted by the ‘weighting’ given to past behaviour in the coding rules for the Static-99 instrument; see page 35 of Exhibit R8.
121. The Tribunal agrees with the Respondent’s contention as contained in clause 50 of his written submissions as follows:
…
50.The Respondent submits that the Applicant's past behaviour is also a reliable indicator of his propensity for future offending in circumstances in which:
50.1The Applicant committed further offences after having been charged with serious offences in December 2001;
50.2The Applicant committed further offences after having been released from custody on bail in 2003; and
50.3The Applicant committed further offences in July to August 2006 after having undertaken a 'rehabilitation course' in gaol in 2004 and after having been sent an NOICC in August 2005.
…
122. The Applicant in his written submissions referred at some length to Mr Smith’s report and the fact that Mr Smith had found that the risk of recidivism in drug-related offences was nil and the risk of recidivism in fraud offences was low. The Applicant did not refer to the fact that Mr Smith in the course of his cross-examination altered his assessment in such manner that the risk was reassessed as moderate to high.
123. The Applicant in furnishing written submissions also furnished an extract from Butterworths, Criminal Practice and Procedure NSW 1998 as to an ‘Accessorial Liability’. The relevance of the latter material was not clear. The Applicant in his evidence said that he pleaded guilty to numerous offences committed by Randy in which he did not participate and from which he derived no advantage, purely because he knew of them. The Applicant did not at any time seek to suggest that he was responsible as an accessory.
124. Courses were taken by the Applicant in gaol and including a course in anger management. The Applicant said that courses were sometimes taken as a method of passing the time.
125. I do not believe that the Applicant’s sister was as ignorant of the Applicant's criminal history as she would have the Tribunal believe. At the same time, I do accept that she is devoted to her brother although her protestations, as to the effect on her, if he were to be removed from Australia cannot be accepted.
126. The evidence of the Applicant’s girlfriend, Ms Gultom, can I think be accepted, even though little weight can be attributed to it, and although, the extent of her devotion to him is perhaps open to some question. In this context, the Applicant has been somewhat duplicitous. As late as 2007, and about a year after he had formed a relationship with Ms Gultom, he was referring to Ms Skevos as his partner.
PART I - the risk of recidivism
127. In Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942, I dealt with recidivism in a separate Part, because it was such an important consideration in that case. This is so also in respect of this case, and I propose therefore once again to deal with this question in a Part devoted specifically to it.
128. In Rajaratnam I referred in clauses 51 to 53 to a number of relevant and important decisions in the following terms:
…
51.Ms Teo referred the Tribunal to a decision by Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No 81. Clauses 3 to 6 (and clauses 4 and 5 are particularly relevant) of that decision read as follows:
…
(3)Deportation may have for the criminal consequences more serious than the term of imprisonment which he served. Thus, in Re Sergi, supra, the criminal, an aged man, if deported, would have been separated from his children and grandchildren and may have been separated from his wife. In Re Ceskovic (1979) 2 ALD 453, and in Re Sevis, supra, consideration was given to the possibility of further punishment of the criminal should he return to his homeland.
Deportation may interfere with the criminal's rehabilitation. One of the objects of a sentence of imprisonment is the criminal's rehabilitation into the community. In the following cases it was thought that deportation would be likely to prejudice the criminal's rehabilitation: Re Vincent (1978) 1 ALD 460, Re Sajatovic (1979) 2 ALN No 78, and Re Martin & Sergmann (1980) 2 ALN No 114.
(4)The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. The cases I have mentioned under factor (2) are here relevant.
(5)Although the science of recidivism is an imprecise one, the task of assessing the prospects of future harm to Australia should the criminal remain occupies much of the Tribunal's attention in deportation reviews. The Tribunal gives attention to statistics on recidivism to the extent that they are available and expects that persons appearing for the parties will have considered what are the most relevant statistics currently available.
In the past history of most of the criminals considered for deportation, that is to say, criminals who have committed relatively serious crimes, personality defects, emotional or intellectual immaturity, lack of control or like matters can be identified. It is for this reason that in some types of crimes, for example, the crime of break, enter and steal, the rate of recidivism is relatively high. Thus the Tribunal finds little assistance in simplistic evidence from an Applicant that he will not offend again. 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.
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again. See Re Hood (1977), 1 ALN No 5, Re Tcherchian (1978), 1 ALN No 20, Re Botic (1978), 2 ALN No 3, Re Seljankovski (1979), 2 ALN No 43, Re Bio (1979), 2 ALN No 48, Re Smithers & Manson (1979), 2 ALN No 51, Re Nardella (1979), 2 ALN No 55. And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. See Re Becker (1977), 1 ALD 158, Re Gemayel (1978), 2 ALN No 5. (Emphasis added by the Tribunal)
(6)The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature. In many of the cases which come up for consideration, deterrence of others is not a significant factor. The crimes are of an individual character and any deterrence that is needed is satisfied by the provisions of the criminal law. But there are a number of cases in which crimes of a particular type have been associated with particular ethnic communities. Evidence before the Tribunal has shown that a number of young New Zealand citizens, particularly those living in and around the Bondi area of Sydney, have had a propensity to commit crimes in the nature of break, enter and steal, minor frauds and the like. Because a community group is involved, it has been thought to be useful that that group should appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by return to New Zealand. See Re Frith, supra, Re Winthrop & Smith (1980) 2 ALD 873, Re Tombuloglu (1981) 3 ALN No 11, and Re Steed (unreported, 17 July 1981, No N13/81).
Similarly, evidence before Tribunals has shown that some Italians from Calabria, particularly from the vicinity of the town of Plati, and some elements of the Turkish and Lebanese ethnic communities in Australia have become involved in drug offences. In some cases, it has been thought that the desirability of deterring others of the ethnic group from committing offences of a like nature was a relevant factor to which weight should be given.
Nevertheless, this is a factor which is taken into account only with care. As I said in Re Saverio Barbaro (1980) 3 ALD 1 at 15,
'The Minister contends that a deportation order is not imposed by way of punishment. One of the grounds in the notice of appeal in Gungor's case is that
"The making of a deportation order is not punishment". But little purpose is served by characterizing deportation as being not a punishment without recognizing that, if the major factor which moves the making of the deportation order is the desire to deter persons other than the convicted person from committing crimes of a like nature, then the making of an order may serve as an additional punishment because it is a detriment imposed as a consequence of the offence and is imposed with a view to deterring other persons from committing like offences. When a deportation order is made principally for the purpose of deterrence, its affinity with punishment consequent upon a conviction becomes a close one. That is a relevant matter to be taken into account.
…
52.Ms Teo also referred the Tribunal to the judgment of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198. See in particular the following extract from the judgment at 203 from Beaumont J as follows:
…
Risk of recidivism
The tribunal said, in the course of its reasons: ``As to the possibility of recidivism, there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed ... I believe accordingly that the possibility of recidivism is quite minimal.''
It will be recalled that the minister expressed his conclusion on this aspect as follows: ``I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP program. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low.''
There is an apparent inconsistency in this reasoning. On the one hand, there is ``the reality'' of a ``real risk, however minimal ...'' [my emphasis]. On the other hand, the minister's conclusion on the point is said not to ``depart greatly'' from the tribunal and the possibility is said to be ``low''.
I have difficulty in following the logic of this approach. If a risk is ``real'', it is not apparent that it can at the same time be ``minimal'' or even ``low''. The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the tribunal on the point and, at the same time, express the opinion that there was a ``real'' risk. Such an opinion would be quite contrary to the tribunal's conclusion on this matter. It must follow, in my view, that, to this extent, the minister's reasoning was ``manifestly unreasonable''. This was an important aspect of the minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the minister for further consideration in accordance with the law.
…
53.It is of course clear that the judgment in Batey (supra) is binding on me. The decision in Stone (supra) while it may not be binding in the strict legal sense, was given by a judge and one of this Tribunal’s most respected presidents and deserves consideration accordingly.
…
129. The views expressed in the past as to this aspect by her Honour Judge Latham and Ms Collins and Ms Watson may, with respect, have been optimistic.
130. Mr Smith was constrained in evidence and notwithstanding his report (Exhibit A5 attached to these reasons at Annexure G), to agree that the risk is moderate to high.
131. The evidence before the Tribunal indicates that the Applicant has had repeated chances of reform and repeated warnings and including considerable leniency but has failed to heed them and take advantage of any of them. I am inclined to agree with Mr Smith’s view that he is not without intelligence. Even though his position with Australia Post (which appears to have been his only full-time employment for any period of time) was one which did not require great intelligence, the frauds of which he was convicted of would appear, in the case of a considerable number of them, to require some skills. It is not everyone who can procure the transfer of moneys out of the banking accounts of others. I must accept then that the risk of recidivism is moderate to high and at all events unacceptably so.
PART J - direction - visa refusal and cancellation under section 501 - no. 21 (“Direction No 21”)
132. It is clear of course that the Applicant does not pass the character test; this is so because of the prison sentences to which I have referred. Indeed the Applicant, as I have indicated, accepted that this was so.
133. In this Part J, references to numbered clauses should be construed as references to numbered clauses in Direction No 21.
134. The primary considerations are set out in clause 2.3, reading as follows:
…
PRIMARY CONSIDERATIONS
2.3 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.
135. Clause 2.3 must be read in conjunction with Clause 2.5, reading as follows:
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
136. I have dealt with the risk of recidivism; in Part I my finding is that the risk is moderate to high. The decisions in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 and Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 have the effect that because the offences were so serious, I must hold that this factor supports deportation; (see in particular clause 5 of Stone quoted earlier in these reasons).
137. Deterrence is a factor which is difficult to evaluate if only because there is seldom little real evidence of its effect. It must be said though that a message must be given in clear terms that conduct of this type can never be tolerated.
138. Many of the offences were undoubtedly very serious within clause 2.6 of Direction No. 21. In my view, the expectations of the Australian community under clause 2.12 would favour the cancellation of the visa.
139. As to hardship, the only persons affected are the Applicant's sister and Ms Gultom. Both of them will be adversely affected by his being removed from Australia. However and at the same time it is not possible to accept Mrs Ambarita’s protestations of being “destroyed” seriously, and as to Ms Gultom, there is some doubt as to whether the relationship is as established as she sought to suggest. As I have indicated, the Applicant, as late as the middle of 2007, was referring to Ms Skevos as his partner.
PART K - conclusion
140. In all the circumstances the discretion cannot be exercised in favour of the Applicant and the decision under review must be affirmed.
141. Some of the annexures contain information referable to victims of the Applicant's crimes which is or may be confidential and where the disclosure of that information might be harmful to them. I refer in this context to bank account or credit card numbers and information of a similar nature. Accordingly, the prudent course is to eliminate information of this kind from the annexures and I have done so.
I certify that the 141 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: .....................SGD...........................................................
Associate (Felicia Daniele)Dates of Hearing: 10 and 11 October 2007
Date of Decision: 31 October 2007
Counsel for the Applicant: Mr R. Killalea
Solicitor for the Applicant: Mr D. Cohen
Solicitor for the Respondent: Mr S. Moloney
2007/3787 Annexure A Tirtabudi; Alvin
Referred to in these reasons at paragraph 5 above:
‘A’
Annexure A To Respondent’s Statement of Facts and Contentions
DATE
EVENT
20 July 1971
Applicant's date of birth
23 June 1981
Entry to Australia
19 December 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 April 2002
Applicant charged with 'goods suspected stolen in/on premises (not motor vehicle).
28 October 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 January 2003
Applicant granted bail.
7 April 2003
Applicant committed for trial in the District Court on the charge of 'Supply prohibited drug' laid on 19 December 2002.
27 July 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).
5 September 2003
Applicant granted bail in the District Court.
18 November 2003
Applicant charged with 'Goods suspected stolen in/on premises (not motor vehicle).
16 December 2003
Applicant charged with:
1. Obtain money etc by deception (2 counts);
2. Obtain money etc by deception.
26 February 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.
1 April 2004
Applicant sentenced to 6 months imprisonment commencing 28 August 2003 for 'Stolen goods' charge of 24 April 2002.
23 June 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 September 2004
Court of Criminal Appeal dismisses appeal against sentences given on 26 February 2004.
25 July 2005
Applicant is released from prison.
28 October 2005
Applicant is charged with 'Goods suspected stolen given other not entitled (not motor vehicle)'.
17 June 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 June 2006
Applicant fined $565 for 'Stolen goods' charge laid 28 October 2005.
19 August 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..
1 May 2007
Applicant convicted of charges laid on 17 June 2006 (sentenced to 6 months imprisonment commencing 16 August 2006 for each charge to be 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).
6 August 2007
Applicant's visa is cancelled.
7 August 2007
Applicant is granted a bridging visa until completion of custodial sentence.
15 August 2007
Applicant completes sentence but remains in custody for other charge of 'Supply prohibited drug' laid on 8 April 2007.
17 August 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.
2007/3787 Annexure G Tirtabudi; Alvin
Referred to in these reasons at paragraph 84 above.
Exhibit A5
Terry Smith’s report of 29 September 2007
29 September, 2007
David H Cohen & Co
Solicitors & Attorneys
Suite 15, 1st Floor
301 Castlereagh Street
SYDNEY NSW 2000PSYCHOLOGICAL ASSESSMENT
CONFIDENTIAL
RE: ALVIN VILI TIRTABUDI
DOB: 20 JULY, 1971
ADDRESS: c/- VILLAWOOD DETENTION CENTRE
YOUR REF: DHC:TS:MN7678
1. REFERRAL
Thank you for requesting a psychological assessment of this thirty six year old man. The Minister has made a determination to cancel his Class BB, Subclass 155 Resident Return Visa in August 2007 and Mr Tirtabudi has appealed the decision. The purpose of this report is to provide an updated psychological assessment of this man’s functioning, specifically in relation to the history of his repeated offending, his psychological status, the likelihood of recidivism and his prognosis for leading a productive life in Australia.
Mr Tirtabudi was interviewed at Villawood Detention Centre on 24.9.07. He also underwent formal psychological testing. He was dressed in casual clothing. His attitude to the interview was open and his demeanour was composed. He was compliant with the interview processes and pleasant in his reactions.
The following documents were read prior to the interview and again in the preparation of this report.
16 30.9.05 Report by K Watson, Forensic Psychologist;
17 18.8.05 Report by E Collins, Psychologist;
18 12.5.07 Statement of Reasons for Cancellation of Visa Under s501(2) Migration Act, 1958, E Vanaaken, Delegate of AAT;
19 19.6.07 Issues for Consideration of Possible Visa Cancellation under Subsection 501(2) of the Migration Act 1958;
20 19.8.06 Police Facts Sheet (two documents) and Full Facts Sheet
21 3.10.07 Respondent’s (for AAT) Statement of Facts and Contentions.
Mr Tirtabudi was informed about purpose of the assessment and he expressed his understanding about it and his consent for it to proceed. He was fully oriented to the interview process.
I note that I have read the Expert Witness Code of conduct which appears in schedule 7 of the Uniform Civil Procedures Rules 2005. I agree that I am bound by the said Code of Conduct.
2. RELEVANT BACKGROUND INFORMATION
The full historical details of Mr Tirtabudi's family of origin, travel to Australia, the over stay in Australia without the proper visa approval and the subsequent provision of a Class BB, Subclass 155 Resident Visa in 1993 have been provided in previous reports. It would prove little value in repeating these details. The relevancy of this time period to the current application is that he was aged 9 years when his family brought him to Australia and over the following decade of his life he fully subsumed his identity into the Australian culture. He forgot the language, culture and identify of the homeland of his parents. Such was the pervasive and profound depths of his integration into the Australian identity that he applied for permanent residency independent of his parents when their deportation was ordered. He could not accept that he could develop the requirements to adjust into another culture and he chose to separate from his parents because he knew he could make the transition. He was not aged eighteen years at the time. He remained in Australia when his parents were removed back to Indonesia four years later. The parents of Mr Tirtabudi separated within a year of being returned to Indonesia because they could not adjust to the pressures of their deportation.
Mr Tirtabudi’s intention to develop a productive life in Australia has been evident from an early age. He completed TAFE training in electrical engineering (one year) and in Commercial Data Processing Analysing (two and a half years). He married in 1993 but they separated after four years because of irreconcilable differences. He then cohabited with a partner for three years. He was made redundant in 2000 after seven years of constant employment and then he maintained part time employment in a fast food outlet for a year. By the time of his offending in 2001 he was aged thirty years and had a well established, productive and prosocial lifestyle.
Mr Tirtabudi returned to Indonesia on several occasions but for only very short periods. The first was in 1993 as part of the process to obtain the ‘Return Visa”. He travelled there in 1994 for a honeymoon, in 1995 to return the corpse of his wife’s grandmother, in 1996 for a second honeymoon, to Bali in 1999 and to his grandmother’s funeral in 2001. He was in custody at the time of his mother’s death in 2003. He said he did not have any personal, social or cultural identity with the country other than some strong interest in the notion that the roots of his family tree resting in another country.
The decline of Mr Tirtabudi’s adaptive functioning had an insidious onset. After the breakdown of his marriage his new partner was casually but persistently involved in the clubbing scene and introduced him to the consumption of amphetamines that so persistently dominate this form of socialising. Over time their only social contacts derived from this scene and by the time they separated in 2000 he had formed a physical and psychological dependency on the drug. He said he tried to cease the addiction on several occasions but found that his social and personal world had been completely tied up in this setting and relapse invariably occurred. The repeat offending between 2001 and 2003 for which he was sentenced to a period of imprisonment related to a range of charges pertaining to the possession, use and deemed-supply of these drugs associated with his participation in this environment. He acknowledged buying the drug in larger quantities to make them cheaper. He also claimed that his circle of friends regularly did this and shared the drugs. He was adamant that his actions were not designed to gain a profit but to maintain a social lifestyle. He argued that the incident relating to ‘obtaining money by deception’ was the result of an acquaintance repaying a debt to him from monies illegally obtained by this person and depositing it into his account. He said he had goods including a computer, mobile phone, a PDA that were legally obtained but he did not have receipts for them and as such could not disprove claims against him that they were stolen.
The numerous sentences imposed on Mr Tirtabudi were ordered to be served concurrently. He completed a twenty month period of imprisonment and was released from custody on 25.7.05 with a parole period to end on 25.5.07. He resided with his sister who had moved back from Melbourne to offer support. Within a few months his aunt and cousin (and co-offender) were living with them. The house became an open house to many friends of his cousin. Over the months he became aware of the activities of his cousin relating to identity fraud and the illegal obtaining of money using credit cards, bank accounts. He said a computer located in the house belonged to his cousin and it was used by his cousin and numerous other people. He was adamant that despite his awareness and covert support he did not obtain any benefit from these happenings nor was he intended to. He said his cousin provided evidence that Mr Tirtabudi’s role was a passive one and that he did not receive any gain from the cousin’s activities. Numerous sentences were ordered to be served concurrently and he was required to serve a twelve month period of imprisonment. The release date was to be 15.8.07.
Mr Tirtabudi was questioned about his awareness that his visa might have been at risk because of criminal behaviour. He stated that he successfully argued against an NOIC in 2005 on the basis that he suffered a drug dependency and that his offending was understood in the light of a mental condition as explained in two psychological reports produced at the time. At the time the issue of recidivism was considered to be slight because of the absence of risk factors such as antisocial attitudes, psychopathology, poor employment prospects and an impaired/chaotic lifestyle. It was recognised that he had addressed his drug problem and it was considered he was unlikely to return to a drug offending lifestyle.
In the interview of 24.9.07 Mr Tirtabudi in retrospect expressed his awareness that further offending held a very high likelihood that his visa would be cancelled. He argued it was on this basis that he ensured he did not relapse on the amphetamines which he managed to do this by sheer determination and avoiding the club scene. He argued that during the twelve month period he was on parole he remained drug free. He attested to this fact because he regularly was subjected to urine screens and they were all negative.
Mr Tirtabudi was questioned about the criminality aspects of the matters for which he was sentenced in 2006. He said that initially he was not aware about the nature of his cousin’s actions but over time it became obvious to him what was happening in the house. He met his girlfriend (and co-offender) through his cousin and said they had known each other quite closely for some time. He said there were several mobile phones around and people came and went and used the facilities in the house including the computer. He was not asked to nor did he actively participate in any of the happenings with the identity fraud or obtaining monies. He acknowledged accompanying his cousin on many outings all over the city during the day and night because they were close friends. He said his culpability lay in the fact that he knew what was happening at the time it was happening but did not disconnect himself from associating with his cousin. He was adamant that he did not gain any proceeds from the actions of his cousin nor did he request any. He said the basis of his plea of guilt was that he knowingly and repeatedly placed himself into circumstances in which he was cognizant that the fraudulent behaviours were occurring.
Given the gravity of the circumstances related to his visa and the seriousness of his cousin’s actions Mr Tirtabudi was asked why it was that he risked everything in a misguided sense of loyalty toward his cousin and girlfriend. He said, “I guess I was splitting hairs…to me I was not doing the actions and I was getting nothing so I did not think I could be done for anything”. He was asked if he was playing a highly risky game with his freedom and visa privilege given his reprieve in 2005. He said, “I thought that if I wasn’t doing anything and I kept off the drugs then I was legit…I made sure I did not relapse with the drugs…it was not just a technicality in my mind because I believed that while things were going on around me I was not responsible…I can’t argue I was innocent because I knew what was happening, I was there when things happened …I can’t argue I was innocent but then I got nothing from it either”.
The capacity of Mr Tirtabudi to adjust to the Indonesian way of life was discussed. He said he does not have any extended family supports upon which he can rely if he is deported. He does not know the whereabouts of his father. The only direct family he has include his sister and aunt and they live in Australia. He cannot converse in the native tongue. He said he does not have any savings and will not be able to support himself in the short to medium term future. His qualifications are out of date, not specific to the businesses or simply inappropriate to the industry requirements in Indonesia. He does not have any contacts to assist him to obtain accommodation, employment or to become self subsistent. He is not culturally or socially sensitive to the demands to become socially competent or competitive in the employment sector. He believes he will be relegated to the fringe sector in society whereby he will be forced into poverty. He believes that survival will be immensely difficult. He said, “if I came here as an adult and had to go back then I could accept it but this is forced displacement because my identity is Australian, I have been here twenty six years, starting as a child and I do not know any other kind of life…there is no integration programme and I will be lost”.
Mr Tirtabudi was asked about his plans should he be allowed to remain in Australia. He said he would comply with all of the demands placed upon him as a result of his sentences. The personal attachments that will suffer should he be deported are his sister, her children and his aunt. He talks with his sister most days and they are very close. He does not have any biological children. He would seek assistance through the Work Choices programme and perhaps head towards the mines for employment.
Mr Tirtabudi then completed a formal psychological test (Symptom Checklist 90-R). This self report instrument is designed to reflect the intensity and breadth of symptoms of psychological maladaption. It is considered to be a well normed, valid and reliable psychological test instrument. The ‘Global Severity Index’ indicates the current level or depth of distress from any psychological disorder. His T-score of 52 places him well within the normal limits. The ‘Positive Symptom Index’ is a measure of symptom intensity and his T-score of 45 suggests he is not acutely affected by pathological symptomatology at the present time. The ‘Positive Symptom Total’ is a measure of symptom breadth and his T-score of 53 places him in the middle of the population norm. There were not any scores above the normative mean (i.e. T-Score of > 60) in any of the sub-test scores suggesting he does not experience symptoms indicative of somatising, anxiety, inferiority, depression, hostility, paranoia or psychoticism. His test responses were considered to be valid.
3. OPINIONS AND CONCLUSIONS
It would seem that the central issue in question is the safety of the Australian community if Mr Tirtabudi is allowed to remain in Australia. He has an extensive criminal history and any statement about the prognosis and recidivism of repeat offenders is fraught with difficulty.
In the case of Mr Tirtabudi, there seems to be two discrete periods of offending in his life. The first relates to a three year period in which he became amphetamine dependent in the context of two relationships and participating in the club scene. Once sentenced, it would appear the he was able to become abstinent and upon his release from custody he did not relapse. The drug dependency was understood as a ‘mental condition’ under the terms of s. 32 Mental Health (Criminal Procedure) Act, 1990. The difficulty with such a condition is that the rate of relapse is high and repeat offending is the norm. Generally, when such offenders are sentenced they do not stop their antisocial activity, change the style of offending and continue with the addiction. It would seem that in the case of Mr Tirtabudi he was able to make a complete recovery. Urine samples during his custodial sentence, whilst on parole and during the second custodial sentence would attest to his drug free status. Thus, he exhibited a determination to bring his life under control and made many changes to achieve this end. The prognosis expressed by the different authors in 2005 proved correct.
The issue then is to examine the degree of criminality of this man’s offending after he was released on parole in 2005. He argues that he is culpable but that his actions were passive. He argues he did not form any intention to act antisocially and did not act in this manner but was in very close associations with those who did. Thus any current Risk Assessment of Mr Tirtabudi is a bit of a conundrum. On the one hand, he does not deny responsibility for his actions but his actions suggested a tolerance of antisocial 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.
The other measures of ‘static variables’ (i.e. characteristics that in and of themselves are unlikely to change in response to treatment) included a clinical interview (which focussed on motivations, attitudes and factors associated with intense psychological distress and antisocial behaviour) and a formal measure of personality. When the information from these are considered in the light of a very lengthy history of stable and highly prosocial behaviour then another picture seems to emerge. Mr Tirtabudi’s history of danger to the community pertains to a period in his mid adult life when he became drug dependent and which was at odds with his normal patterns of his living. Evidence as to his ‘normal patterns’ of behaviour and factors that generally co-exist with such repeat criminal behaviour, inclusive of rage, impulse control problems, contempt of others for one reason or another, feelings of superiority/domination, distortions of attitudes/values, distorted attitudes to the rights of others (inclusive of creed, race, minority groups), psycho-pathology were strongly denied as ever having been aspects in his character. It would be impossible to hide such attributes from those around because of the elevated intensity of the impulses/attitudes that shape, colour and control behavioural patterns. So, in terms of ‘static’ risk factors, the evidence would suggest that the likelihood of re-offending is not consistent with ‘static factors’ associated with recidivism.
Prior to considering the ‘dynamic variables associated with recidivism, the problematic issue is this case is understanding the motivation of the offender. In short the evidence is that he associated with and tolerated extensive antisocial behaviour by those very close to him and with whom he associated on an almost daily basis. It was accepted that his functioning was not impaired by alcohol or any other substance. His demeanour was reported as reasonable and this would rule out issues such as a mental illness or condition (as understood under the Mental Health Act, 1990). He denied issues that would cause him to act antisocially such as debts with gambling, inability to work or a refusal to live a productive life.
This being the case, then perhaps an answer to this question might lie in the ‘dynamic variables’ leading up to his offending. The ‘dynamic variables’ (i.e. those variables that can be moderated by treatment or supervision) are assessed using a structured clinical interview. Mr Tirtabudi appears to have very few Dynamic Risk Factors. He denied any impulse control issues such as gambling or the like. He had stable accommodation and had good support systems. There was not any evidence of mental health issues. The history of significant criminality in his background pertained to a drug addiction which had ceased. There was no issue with violence in his life. Generally he did not have antisocial peers (independent of his cousin’s actions) nor did he seek out others with anti-social values. He had realistic future plans. It would seem that the only possible risk factor was denial, not about his actions but the broader context of his living circumstances. Denial itself has never been shown to have any significant relationship to recidivism and alone this factor needs to be considered with caution. On the whole, the risk assessment of this man reveals a person of quite low risk of recidivism.
The memories of Mr Tirtabudi are that his developmental history occurred under positive circumstances. He perceived that all of his material and emotional needs were met by his mother and father. It would seem that he developed a robust and resilient character and the confidence to proactively meet the demands that confronted him in his life. His adolescent years were dominated by his education and sport. His young adult life involved relationships, employment and ambition. He denied any problems with anxiety, depression, poor coping or the like. He felt he had a confident, strongly independent and robust character. He denied any problems with alcohol or antisocial behaviour or other impulse control issues with things like gambling.
In diagnostic terms and relating to s. 32 Mental Health (Criminal Procedure) Act, 1990 Mr Tirtabudi was not considered to be suffering any mental illness, mental condition or developmental disability at the time of his offending.
The impression gained of Mr Tirtabudi is of a man of well above-average adaptive intelligence and with a broad range of insights. He has elevated communication skills and a strong sense of himself. He was not blaming the world or anyone for his lot in life or for his current circumstances. He is well informed about his sense of personal responsibility and the legal processes he is facing. He argues that as a person he has many good qualities.
Given the current circumstances and the attitude of the AAT the prognosis of Mr Tirtabudi seems to be a positive one. He argues his attitudinal system is prosocial and the impact of his current situation is so profound that he will never jeopardise permission to remain in Australia. Whilst he acknowledges that made this statement in his previous appeal and before his second period of incarceration, he said the reality of his current situation is so dominating in his awareness that his only choice is to fiercely protect himself and to live a productive life. The dynamic and static features associated with recidivism are not dominant features in his functioning. The psychological testing indicates the lack of psychopathology in his functioning. Thus the elements are there for this man to live his life without re-offending. He has the necessary insights and self controls to live a productive and non-offending lifestyle in Australia.
Please contact my office if I can be of further assistance.
Yours faithfully
TERRY SMITH
Clinical Psychologist
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