Toia and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1142

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1142

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1048

GENERAL ADMINISTRATIVE DIVISION		)
Re		Patricia Carol Toia

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date2 November 2004

PlaceSydney

Decision The decision under review is affirmed.

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

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – visaex – on-shore visa application – cancellation of special category visa – character test – visa cancelled on the grounds of the applicant’s substantial criminal record and having regard to her past and present criminal conduct – discretion that the tribunal may exercise where the applicant fails the character test – examination of the applicant’s criminal history and family circumstances – examination of the applicant’s current support systems – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant – found that the applicant does not pass the character test because of her substantial criminal record, including offences relating to violence and prohibited drugs – found that there is a real risk that the visa applicant will continue to offend – the refusal of a visa would send an undesirable message to non-citizens contemplating criminal conduct – the community would find her long record of law-breaking as abhorrent – the applicant would be eligible for rehabilitation and other services in New Zealand – the decision under review is affirmed.

Migration Act 1958 ss 499, 501, 501G, 501(6), 501(7)

Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Taikato vThe Queen (1996) 186 CLR 454

REASONS FOR DECISION

2 November 2004	Professor GD Walker, Deputy President
Summary

1. The applicant, Patricia Carol Toia, is aged 26 and a citizen of New Zealand. Ms Toia came to Australia at the age of one. On 1 September 1994, Ms Toia was granted a special category visa by operation of law under the Migration Reform Act. Between August 1993 and August 2004, Ms Toia had a series of criminal convictions recorded against her including for robbery, assault, using an offensive weapon to prevent apprehension, possess prohibited drugs, and trafficking prohibited drugs. In addition, she has numerous driving-related offences recorded against her including drive whilst unlicensed, drive unregistered vehicle and drive with special range concentration of alcohol and is disqualified from driving until March 2053.

2.      On 30 July 2004, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Ms Toia’s special category visa on the ground that she failed the character test because of her substantial criminal history and past and present criminal conduct.  This is the decision to be reviewed by the Tribunal.

Background

3. Ms Toia, was born in New Zealand on 15 July 1978 and is aged 26. She is a citizen of New Zealand. Ms Toia came to Australia on 28 September 1979, with her mother, Sofie Toia. At the time, she was aged 14 months. On 1 September 1994, Ms Toia was granted a special category visa by operation of law under the Migration Reform Act. She is currently being held in the Villawood Detention Centre. Her parents reside in New Zealand.

4.      Between August 1993 and August 2004, Ms Toia was convicted of a series of criminal and driving-related offences (G14).  Her criminal record, which is approximately 30 pages long, includes the following:

Court date	Court	Offence	Sentence
31.8.1993	Cobham Childrens Court	Stealing	Without conviction probation 12 months, supervision Juvenile Justice Branch
11.10.1993	Lidcombe Childrens Court	Public Mischief	Fine $80
12.10.1993	Cobham Childrens Court	Robbery with striking	Six months control order from 29.9.1993
15.12.1993	Windsor Childrens Court	1. Assault 2. Robbery	1. ADJ Gen 2. Control order 10 months (on appeal on 11.2.1994 the Penrith District Court confirmed the conviction, in lieu enter recognisance without surety good behaviour, supervision of Juvenile Justice Brach, accept counselling
31.5.1994	Cobham Childrens Court	Larceny	Fine $250
2.5.1995	Cobham Childrens Court	Larceny	Fine $300, court costs $46
4.3.1997	Blacktown Local Court	1.Larceny 2. Assault 3.Assault occasioning actual bodily harm	1. Convicted s 60AA, warrant to issue 2. Warrant to issue 3. Warrant to issue
5.8.1997	Blacktown Local Court	Receiving	Fine $200, court costs $51
11.8.1997	Blacktown Local Court	1. Steal property in dwelling house 2. Maliciously destroy or damage property 3. Break enter building 4. Commit felony (steal)	1-4. Not before court, warrant to issue
18.11.1997	Blacktown Local Court	Common assault	Fine $150, court costs $51, compensation $16
13.3.1998	Maitland Local Court	1. Assault police officer in execution of duty (x2) 2. Use offensive language in/near school 3. Resist officer in the execution of duty 4. Resist officer in execution of duty 5. Custody of an offensive implement in a public place	1. Fixed term four months commencing 15.2.1998 2. Fine $1, court costs $51 3. Rising of the court 4-5. Recognisance s 588, fine $500, 18 months to accept supervision of NSW Probation Service
19.5.1998	Penrith District Court	1. Use offensive weapon to avoid apprehension (x2) (Bench warrant) 2. Malicious wounding 3. Stealing (first instance warrant)	Sentenced on both counts to minimum term six months commencing 15.2.1998 concluding 14.8.1998 additional term with conditions: 12 months commencing 15.8.1998 concluding 14.8.1999. Release subject to supervision (matters taken into account on form 1). 2. Minimum term six months commencing 15.2.1998 concluding 14.8.1998 additional term with conditions: 12 months commencing 15.8.1998 concluding 14.8.1998 release subject to supervision (matters taken into account on form 1) 3. Fixed term 21 days commencing 19.5.1998 concluding 9.6.1998
14.12.1998	Blacktown Local Court	1. Shoplifting 2. Maliciously destroy or damage property	1-2. Convicted s 80AA, warrant to issue.
4.1.1999	Blacktown Local Court	1. Drive without licence on road 2. Driver, special category, exceed special range 3. Drive unregistered vehicle with number plates on to deceive 4. use uninsured motor vehicle on road	1-2. Convicted s 80AA, warrant to issue 3-4. Fine $750, court costs $52
17.3.1999	Blacktown Local Court	1. Stealing 2. Possess prohibited drug 3. Driver state false name 4. Driver never held licence 5. Malicious damage 6. Drive with special range concentration of alcohol	1. Fixed term three months commencing 11.3.1999 2. Recognisance $1,000, 15 months supervision NSW Probation Service 3. Fine $400, court costs $52 4. Recognisance $1,000, 15 months, disqualification for three years 5. Fine $300, court costs $52 6. Fine $300, court costs $52, disqualification for six months commencing 17.3.1999
7.12.1999	Kogarah Local Court	1. Use unregistered vehicle 2. Possess prohibited drug 3. Use unregistered vehicle 4. Use unregistered vehicle on road area 5. Use unregistered vehicle on road	1. Fined $400, court costs $54 2. Fined $400, court costs $54 3. Fined $400, court costs $54. 4. Fined $700, court costs $54 5. Fined $700, court costs $54
27.1.2000	Blacktown Local Court	1. Goods in personal custody reasonably suspected of having been stolen 2. Use unregistered vehicle on road area 3. Driver of vehicle displaying unauthorised number plate 4. Driver of vehicle displaying misleading registration label 5. Use unregistered motor vehicle	1-5. Convicted s 80AA, warrant to issue
20.4.2000	Sutherland Local Court	1. Drive whilst disqualified 2. Drive whilst disqualified 3. Driver/rider state false name or address 4. Goods in personal custody reasonably suspected of being stolen 5. Use unregistered vehicle on road area 6. Use uninsured motor vehicle 7. Driver/rider state false name or address 8. Uninsured motor vehicle 9. Unregistered motor vehicle 10. Goods in custody 11. Plates calculated 12. Misleading registration number	1. Imprisonment one month commencing 20.4.2000, disqualification two years commencing 20.4.2000 2. Imprisonment one month commencing 20.4.2000, disqualification two years commencing 17.3.2000 3. Fined $200 4. Imprisonment one month commencing 20.4.2000 5. Fined $400 6. Fined $400 7. Fined $200 8. Fined $400 9. Fined $400 10. Imprisonment one month commencing 20.4.2000 11. Fined $100 12. Fined $100
10.8.2000	Bankstown Local Court	Drive whilst disqualified	Imprisonment six months (sentence confirmed on appeal by the Campbelltown District Court on 13.10.2000)
26.7.2000	Waverly Local Court	Drive whilst disqualified	Fined $750, court costs $56, disqualification two years
30.8.2000	Parramatta Local Court	1.       Goods in personal custody reasonably suspected of being stolen 2.       Custody of knife in public place 3. Trafficking prohibited drugs in correctional centre	1-3. Convicted s 25(2), warrant to issue
13.10.2000	Campbelltown Local Court	Shoplifting	Imprisonment three months commencing 10.8.2000 concluding 9.11.2000
21.11.2000	Sutherland Local Court	1.       Use offensive language in/near school or public place 2.       Assault person with intent to resist/prevent apprehension 3.       Resist officer in execution of duty 4.       Shoplifting 5.       Goods in personal custody reasonably suspected of being stolen	1. Fined $100, court costs $56 2-5. Imprisonment Four months commencing 21.11.2000
11.1.2001	Parramatta Local Court	1. UNL/obtain goods (personal custody) 2. Have custody of knife in public place	1-2. Imprisonment three months commencing 20.11.2000 concluding 19.2.2001
16.7.2001	Downing Centre Local Court	1. Possess prohibited drug (x2) 2. Breach bail conditions – application to redetermine	1. Convicted s25(2) warrant to issue 2. Bail Order made
20.7.2001	Downing Centre Local Court	Possess prohibited drug	Fined $500, court costs $58, drug to be destroyed
30.7.2001	Central Local Court	Possess drugs (x2)	Fined $250, court costs $58 for each count
27.8.2001	Central Local Court	Possess prohibited drug	Rising of the court. Drug to be destroyed.
3.5.2002	Downing Centre Local Court	1. Possess prohibited drug 2. Goods in personal custody reasonably suspected of being stolen 3. Custody of knife in public place 4. Goods in personal custody reasonably suspected of being stolen	1. Bond 12 months supervision NSW Probation Service, continue treatment with psychiatrists 2. Imprisonment five months suspended on enter bond five months 3. Fined $400 4. Imprisonment three months suspended on enter bond three months
22.5.2002	Manly Local Court	1. Shoplifting 2. Custody of knife in public place 3. Drive whilst disqualified 4. Goods in personal custody suspected of being stolen	1-4. Convicted s 25(2) Warrant to issue
16.7.2002	North Sydney Local Court	Drive whilst disqualified	Convicted s 25(2) Warrant to issue
7.8.2002	Manly Local Court	1. Assault officer in execution of duty 2. Resist officer in execution of duty 3. Drive whilst disqualified 4.Goods suspected of being stolen in/on premises	1-4. Convicted s 25(2) Warrant to issue
11.4.2003	Parramatta Local Court	1. Drive on road when licence cancelled 2. Driver/rider state false name or address 3. Common assault 4. Assault police officer in execution of duty 5.Possess prohibited drug 6. Drive using hand-held mobile phone 7. Shoplifting 8. Custody of knife in public place 9. Goods in personal custody suspected of being stolen 10. Resist officer in execution of duty 11. Drive on road when licence cancelled 12. Drive whilst disqualified 13. Drive whilst disqualified	1. Imprisonment five months suspended on enter Bond: five months, disqualified for driving commencing 17.3.2009 concluding 16.3.2011 2. Rising of the court 3. Imprisonment five months suspended on enter bond five months 4. Imprisonment five months suspended on enter bond five months 5. Rising of the court 6. Rising of the court 7-9. Bond two years supervision NSW Probation Service, accept supervision of Parramatta Community Health Service. Attend on Dr Stanley as directed and follow all directions in relation to medication 10. Imprisonment five months suspended on enter bond five months 11. Bond two years supervision NSW Probation Service, accept supervision of Parramatta Community Health Service. Attend on Dr Stanley as directed and follow all directions in relation to medication. Disqualification commencing 17.3.2011 concluding 16.3.2013 12. Imprisonment five months suspended on enter bond for five months. Disqualification commencing 17.3.2015 concluding on 16.3.2017 13. Imprisonment five months suspended on enter bond five months, disqualification commencing 17.3.2017 concluding 16.3.2019
4.6.2003	Balmain Local Court	1. Shoplifting 2. Goods in personal custody suspected being stolen (x2)	1-2. Bench Warrant to issue
8.8.2003	Blacktown Local Court	1.Possess implements to enter/drive conveyance 2.Unlawfully possess ETC a prescribed restricted substance 3.Drive conveyance taken without consent of owner 4. Custody of knife in public place 5. Goods in personal custody suspected of being stolen (not motor vehicle) (x2) 6. Goods in personal custody suspected of being stolen (motor vehicle) 7. Drive whilst disqualified 8. Shoplifting	1. Imprisonment 12 months commencing 13.6.2003, non-parole period with conditions: six months. Release subject to supervision. Psychiatric treatment as directed by Probation and Parole. Drug and alcohol counselling and treatment as directed by Probation and Parole. 2. Rising of the court. Drug to be destroyed. 3-6. Imprisonment three months commencing 13.6.2003 7. Imprisonment 12 months commencing 13.6.2003, non-parole period with conditions six months. Release subject to supervision. Psychiatric treatment as directed by Probation and Parole. 8. Imprisonment six months commencing 13.6.2003
29.9.2003	Parramatta Local Court	1. Drive whilst disqualified 2. Drive whilst disqualified	1.Imprisonment five months commencing 13.6.2003 2. Imprisonment five months commencing 13.6.2003
26.6.2004	Blacktown Local Court	Wilfully mark premises without consent	Fined $500, court costs $61
19.8.2004	Blacktown Local Court	Shoplifting	Convicted s 25(2) warrant to issue
25.8.2004	Parramatta Local Court	1. Goods in personal custody suspected of being stolen 2. Shoplifting	Bail unconditional

5.      Between 30 March 1998 and 11 October 2003, while Ms Toia has been in prison, she has had 42 prison offences recorded against her (G14 p105), including since 2001:

Hearing date  Offence

30/10/2003  Intimidation
13/10/2003  Fail to attend muster
19/9/2003  Interfere with correctional centre property
11/9/2003  Fail to comply with correctional centre routine
26/8/2003  Fail to attend muster
17/8/2003  Damage and destroy property
14/8/2003  Intimidation
18/7/2003  Throw article
6/7/2003  Fail to attend muster
4/7/2003  Intimidation
17/6/2003  Intimidation
17/6/2003  Assaults
21/6/2003  Intimidation
20/12/2002  Assaults
1/10/2002  Intimidation
3/8/2002  Intimidation
4/8/2002  Damage and destroy property
31/1/2001  Abusive language
15/2/2001  Drugs in urine
12/1/2001  Not comply with routine

6.        On 9 December 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, advised Ms Toia that the Minister was personally considering cancelling her special category visa on the grounds of her substantial criminal history and past and present criminal conduct (G5).  At that time, Ms Toia was imprisoned at the Mulawa Correctional Centre.

7.        On 10 March 2004, an officer of DIMIA, New South Wales Compliance Cancellations, informed Ms Toia that a delegate of the Minister would be making the decision as to whether or not to cancel her visa and that the matters to be taken into account in making the decision would be her New South Wales criminal history, the Judge’s comments made in relation to her criminal conviction at the Penrith District Court on 19 May 1998 and her sentence administration report concerning her offences committed during her incarceration.   The officer also provided Ms Toia with the opportunity to comment on the intended cancellation of her visa prior to 24 March 2004 (G8).

8.        On 11 March 2004, an officer of DIMIA, New South Wales Compliance Cancellations, advised Ms Toia that she would also be taking into account, a report from Mr Michael Simonovic, New South Wales Probation and Parole Service, dated 10 March 2004.  The officer also extended the time for Ms Toia to comment until 26 March 2004 (G9).

9.        On 24 March 2004, Ms Toia attended upon an officer at DIMIA’s office at Parramatta and made submissions to that officer including, inter alia, that she has been in Australia since 1979, her visa should not be cancelled because Australia is her home and she does not know anywhere else except Sydney, she does not want to be deported because she has “changed her life a bit more than I ever have”, she has a brother in Blacktown and uncle and aunt living in Lakemba and that she has “stopped the drugs and crime.  I am looking for a job and a place to live on my own” (G12).  Subsequently she was convicted of several further shoplifting and goods in custody offences in July and August 2004.

10. On 30 July 2004, a delegate of the respondent decided to cancel Ms Toia’s visa on the basis of her substantial criminal record and past and present criminal conduct and having decided to exercise her discretion under s 501(2) of the Migration Act 1958 (“the Act”)  to cancel her visa.  Ms Toia was informed of the decision by letter dated 11 August 2004 (G15).   On 17 August 2004, Ms Toia lodged an application for a review of the decision by the tribunal.

11. At the hearing of this matter, the applicant was represented by Christopher Levingston, solicitor, of Christopher Levingston & Associates, solicitors, and the respondent was represented by Avenish Chand, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Oral evidence was given in person by Patricia Toia, Bonnett Davidson and Michael Simonovic.

Relevant Law and Policy

12. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who, at paragraph (c) “has been sentenced to a term of imprisonment of 12 months or more” or (d) “the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more”.

13. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. Section 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation, under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

16. In the present case, Ms Toia does not pass the character test because of her “substantial criminal record”, having been sentenced to approximately 35 terms of imprisonment where the total of those terms is more than two years, including on 8 August 2003, a term of imprisonment of 12 months with a non-parole period of six months for possess implements to enter/drive conveyance and, on the same date, a term of imprisonment of 12 months with a non-parole period of six months for drive whilst disqualified. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(1) not to cancel Ms Toia’s visa.

Evidence

17.      The applicant’s criminal record dating from 1993 is not in dispute.  It includes convictions for stealing, robbery, assault, resisting a police officer, assaulting a police officer, using an offensive weapon to prevent apprehension, larceny, shoplifting, offensive language, malicious wounding, receiving stolen goods, maliciously destroying or damaging property, breaking entering and stealing, goods in custody, and possessing and trafficking in a prohibited drug. 

18.      She also has a very lengthy record of driving-related offences, including driving without a licence, driving an unregistered vehicle with number plates on to deceive, using an uninsured vehicle, stating a false name or address, driving a vehicle displaying a misleading registration label, driving while disqualified and driving with special range concentration of alcohol.

19.      She had accumulated approximately 35 terms of imprisonment and a variety of other sentences, while her driving record had resulted in 20 driver’s licence disqualifications.  She is currently disqualified from driving until 16 March 2053. 

20. As the applicant did not dispute that she failed the character test, her solicitor describing her as a “human crime wave”, the evidence at the hearing related almost entirely to the question of how the discretion under s 501(1) should be exercised.

21.      The applicant relied on her statutory declaration dated 15 September 2004.  Although it is uncorroborated, I accept it as being substantially true.  It details an early history as the victim of violent abuse by her parents and one or more of her siblings, as well as gross sexual abuse by male and female members of her own family and by others.  From early adolescence she lived an itinerant lifestyle, stealing to support herself and her increasing addiction to amphetamines and cannabis.  According to her 2002 probation report, she was at one stage diagnosed with a mental illness strongly associated with amphetamine abuse. 

22.      At the hearing she said she could not control herself and had been surviving the only way she knew how.  She did not know what she was thinking at the time of the offences but saw crime as the only way she could pull herself up, as a release and as a way of hitting back.  Even now, she gives the impression of not thinking clearly or in a connected way and having a very poor memory.  She said that the current proceedings had opened her eyes, for she did not realise that her criminal record was so bad.

23.      She was asked about the group of offences for which she was convicted at Penrith District Court on 19 May 1998.  In his sentencing remarks Dodd J had this to say:

You were inside the food court area of Westpoint in a store.  You were      pressing the buttons on a cash register and were spoken to by security   personnel.  You were escorted to the doors but refused to leave and you were         physically removed from the premises.  During this time you continually used         offensive language in front of staff and customers, and in effect threatened to           kill anyone who touched you.  You pulled a seven inch knife from your bag          and waved it towards a security officer, Michael Coomber.  You flicked it at        him and caused a small cut to the back of his left hand.  Police arrived and      told you to put the knife down.  You advanced on them, threatening to stab      them.  They drew their batons and retreated.  You continued to advance,           making threats.  You lunged at Constable Edwards.  You also lunged at    Constable Sinclair.  You were struck by police about the legs with a baton and   at one stage held the knife to your own throat.  You crouched down at one    stage and the police then managed to apprehend you and disarm you.

24.      The applicant said she was drunk on that occasion and was not aware of what she was doing, nor did she remember what had happened afterwards.  She admitted, however, that she had been found in possession of a knife on several other occasions.  She had taken to carrying one because she had so many times been taken from behind by people and assaulted or sexually assaulted.  With the knife she felt secure, as if nobody could touch her. 

25.      She had been in and out of jail since 1993 and although she was referred to a psychologist, she did not see any benefit in going ahead with it because she did not want to talk about her problems with strangers.

26.      She had made a number of other appointments for counselling but, again, did not pursue them, sometimes because she did not like the group in which she was to participate.

27.      The applicant said she had stopped drinking five years ago, but had then resorted to amphetamines again and had also developed a heroin habit.  She said she had not taken amphetamines for the last two years.

28.      Ms Toia maintains that all she wants now is a clean environment with a job and counselling about her problems.  When it was pointed out to her that she had committed more crimes since giving up drugs and alcohol, including the offences for which she was convicted in July and August 2004, she said that she had committed those offences while on Serepax.  She said that the tranquilizers had not been prescribed by a doctor, but then contradicted herself and said that they had been, that she had seen the doctor that morning but had taken five of the tablets rather than the recommended dose of one or two.

29.      Oral evidence was also given by Mr Michael Simonovic, an experienced probation officer who had prepared the probation record dated 10 March 2004 (G10).  He said that Ms Toia had long had a problem with major conflicts with police, correctional services, parole officers and anyone in authority.  These conflicts were traceable to her history of abuse by her family and others, though he conceded that he has met other people with equally grim histories who have not offended.  Her problem is that she is sceptical about the genuineness of those who offer treatment to help her, and she needs to be more open to trust.  She is honest about her behaviour and has insight into it, but because of drugs and her own behaviour she has brought herself to her present condition.  She would welcome help if she thought the conditions were supportive for her.  That would give her prospects for a better life.

30.      While previous probation reports had not found grounds for optimism in her case, Mr Simonovic thought that she had matured, that she was now evaluating life differently.  Her more recent offences were less severe and she had some success in overcoming her dependence on drugs.  He conceded that her most recent offences in 2004 tended to conflict with that assessment, but said he was not sure under what conditions she committed them or what had been her then current state of optimism.  She had a tendency to lash out, but if basic support conditions were available she could do well.  Those conditions and services would probably be available in New Zealand, where there are equivalent standards to those in New South Wales.  He saw some risk that she would re-offend but thought there had been remarkable changes and that she had reached the point where she could improve.

31.      The third witness who gave oral evidence was Ms Bonnett Davidson, a pensioner aged 41 who has looked after a number of “street kids” through the Department of Community Services and the Burnside Centre.  Ms Davidson has come to know the applicant quite well and has offered her a roof after her release should she be permitted to remain in Australia.  Ms Davidson seems a kind and genuine soul but she has not previously had the applicant living with her.  I am not convinced that she has the resources to cope with an anarchic phenomenon such as the applicant, who is no mere “street kid”.  Further Ms Davidson has four children of her own to care for.

Application of the Law and Findings of Fact

32. As stated above, there is no dispute, and I find accordingly, that the applicant does not pass the character test by reason of s 501(6)(a) of the Act because she has a “substantial criminal record”, defined in subsection (7) as a person who “has been sentenced to a term of imprisonment of 12 months or more” (c) or “has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more” (d). As stated above, Ms Toia has twice been convicted and sentenced to terms of imprisonment of 12 months and has been convicted of a series of criminal and driving-related offences for which she has received terms of imprisonment totalling more than two years.

33. The issue for the Tribunal then is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to cancel Ms Toia’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

34.      Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

35.      Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraph (a) drug-related crime, (f) assault or any form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.

36.      Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

Protection of the Australian Community

37.      The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case the applicant has a lengthy criminal and driving-related record dating from 1993.  This record includes terms of imprisonment for using an offensive weapon to prevent apprehension, resisting arrest, stealing, driving while disqualified, having goods in custody suspected of being stolen, being in custody of a knife in a public place, and driving when licence cancelled.   Paragraph 2.6 of the direction states that crimes involving violence or the threat of violence should be treated as very serious.  The applicant has convictions for assaulting a policeman in the execution of his duty, common assault and malicious wounding.  She also has convictions relating to the possession of prohibited drugs (heroin) and the trafficking of prohibited drugs (heroin).  Paragraph 2.6 of the direction also states that drug dealing offences are to be treated as very serious.  The applicant has approximately 11 drug-related convictions, including for trafficking prohibited drugs into a correctional centre (G p50).  Mr Levingston described her dossier as consisting mainly of “nuisance offences”. That is true only of some of them, and in any event the sheer volume of violations is very serious in itself.

38.      When asked about the several convictions she had for possessing a knife in a public place, she replied that she only carried it because she was always being taken from behind and assaulted, sexually or otherwise.  She felt secure when she had the knife, that nobody could touch her.  It was only for her own protection.  But the law no longer accepts the legitimacy of such grounds.  The High Court held in Taikato vThe Queen (1996) 186 CLR 454 that a woman’s well-founded fear of attack was not a reasonable cause or excuse for possessing even a non-injurious irritant spray. In any event Ms Toia used a knife with a seven inch (18 cm) blade to threaten arresting police, not for self-defence, and in the process wounded a security guard.

39.      Next, the tribunal is to consider the risk of recidivism.  This applicant is a repeat offender who has regularly been before the courts since 1993, coming under the control of the Juvenile Justice Branch in August 1993 when she was only 16.  She earned her first prison sentence in 1998 at the age of 21 and has spent much of the last six years in custody. 

40.      Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.  On that criterion alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future.  Mr Levingston conceded that history suggested a high risk of recidivism in Ms Toia’s case, but pointed out that Mr Simonovic had thought there was hope for the future.  The level of seriousness of the offences she was committing was abating and there was less drug-related behaviour.  With support and attention from the right people she would be amenable to change because the visa cancellation proceedings had made her aware of the risk of deportation that she faced.  The itinerant lifestyle that had contributed to her wrongdoing could be changed if she could accept Ms Davidson’s offer of accommodation and support.  She deserved a chance to avail herself of the available help and communication, but if she committed further offences removal would be justified. 

41.      Yet her claim that her most recent offences result from her overdosing on Serepax may indicate a continuing vulnerability to drugs of one kind or another.  It is not easy to see how an overdose of tranquilizers would make a person more likely to break the law, and the explanation may be ex post facto rationalisation.  But it does show a continuing propensity for the casual abuse of drugs.  On behalf of the Minister, Mr Chand contended that there was a history of a large number of serious and minor offences on a continuous and repetitive basis, they were just not nuisance crimes and had contributed to much social disturbance.  There was no clear evidence that she was unlikely to re-offend, and indeed she had committed more crimes since receiving the notice of intent to cancel her visa in December 2003, even though she had claimed that there had already been a change in her thinking.  Mr Simonovic thought that Ms Toia would welcome help and rehabilitation if the conditions were supportive for her and that she had prospects for a better life in those circumstances.  He realised that her recent offences might tend to conflict with that assessment but said he was not sure under what conditions she committed them or what was her state of optimism at the time.

42.      The essence of the problem seems to be that she may accept reform and rehabilitation, but only on her own terms.  She has rejected successive attempts to help her for a variety of reasons, such as not wishing to discuss her problems with strangers, not liking the group of other inmates who would also be taking the course, or simply dismissing the idea on the basis that she would not make a success of it.  In those circumstances the community cannot be expected to go on offering Ms Toia successive opportunities to avoid the long-term consequences of her actions.  It was argued on her behalf that she had been created by us (ie Australian society) and that our intervention had made her problems grow and fester.  That kind of argument appears to rest on older deterministic theories of crime causation that are no longer generally accepted.  Contemporary research shows that individual calculation and choice play a much larger role in crime trends than had previously been thought  (see L. Siegel, Criminology, 4th edition, West Publishing, 1992 p131; C. Buchanan, P. Hartley, Criminal Choice, Centre for Independent Studies, Sydney 1992).  Mr Simonovic’s evidence rather pointed to the problem mentioned when he said that her decisions on whether or not to break the law might depend on her state of optimism at the time, and if it were adverse she might tend to lash out.  She has no marketable skills and appears never to have engaged in gainful employment.  Ms Toia herself said that crime for her was sometimes the only way to pull herself up.  It therefore seems likely that there is a real risk that she will continue to offend in the future. 

43.      The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11).  Deterrence is another factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 para 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating criminal activity. Mr Levingston argued that given the apparent relationship between the abuse of alcohol and drugs and the offending behaviour in this case, the need for general deterrence may not in fact operate effectively. The proposition that those who abuse alcohol or drugs are not amenable to deterrence is not supported by empirical evidence and in this case is conjectural (see Re Sam (supra)).

Expectations of the Australian Community

44.      The third primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

45.      The applicant has engaged in continuous criminal conduct since 1993 up until July 2004.  She continued to break the law even after she was notified of the intention to cancel her visa on 9 December 2003, being convicted in February 2004 of wilfully marking premises etc, without consent of the owner, and being remanded on 25 August 2004 for shoplifting and goods in personal custody suspected of being stolen.  Mr Levingston contended that the preamble to Direction No 21 expressing an intention to cancel visas held by non-citizens “whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it”, displayed an intention that visas should be cancelled only in the most extreme circumstances.  “Abhorrent” defined by the Oxford Dictionary as meaning “inherently repugnant, inspiring disgust; detestable”, should be distinguished from conduct that is merely reprehensible, he argued. The applicant’s conduct was reprehensible but not abhorrent.  Further, in any event the abhorrent quality of the conduct should be looked at in the whole context of Ms Toia’s history and circumstances.

46.      Whether or not the Australian community would regard any particular contravention on the applicant’s record as being reprehensible but not abhorrent, there is little doubt that the community would view the aggregate of such a long record of law-breaking as abhorrent.  While anyone would feel sympathy for her childhood suffering, other children have suffered abuse or neglect without accumulating such an extraordinary criminal history. 

The Best Interests of the Child

47. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2).

Other Considerations

48.      Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision.  The relevant ones in this case are those in paragraph 2.17 (a), (b), (c), (d), (h) and (j).  The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen and to a genuine relationship with an Australian citizen, permanent resident or eligible New Zealand citizen. 

49.      The applicant gave evidence that her parents reside in New Zealand with her siblings.  She was living in a de facto relationship for approximately two years but that arrangement has now ended and can no longer be taken into account.  The applicant has expressed a strong preference for not returning to New Zealand, and in that sense would suffer some hardship if her visa were revoked.  She has family both in Australia and in New Zealand, but is not in close contact with any of them.  In New Zealand she would be eligible for rehabilitation and other services at least as comprehensive as those available in New South Wales.  She may have better prospects of starting a new chapter in her life in New Zealand, where she will be away from her criminal haunts and associates.

50.      Weighing up the primary and other considerations, I find that the other considerations do not outweigh the primary considerations of community protection and expectations.  The decision under review should be affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  14 October 2004
Date of Decision  2 November 2004

Solicitor for the Applicant          Mr C Levingston, Christopher Levingston & Associates, solicitors

Solicitor for the Respondent     Mr A Chand, Clayton Utz, solicitors