Trocio and Minister for Immigration and Citizenship
[2011] AATA 405
•14 June 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/1121
GENERAL ADMINISTRATIVE DIVISION )
Prehector Trocio
Applicant
Minister for Immigration and Citizenship
RespondentCORRIGENDUM TO DECISION [2011] AATA 405
TRIBUNAL: Senior Member A K Britton
DATE: 4 July 2011
PLACE: Sydney
1. The Tribunal released written reasons for decision in this matter, dated 14 June 2011
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975 (the Act).
NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the decision as follows:
- Delete the heading “Background”, located immediately after paragraph 8 of the Reasons for decision.
- Replace the word “withdrawn” with “withdraw” in paragraph 11 of the Reasons for decision.
..................................[sgd].................................
Senior Member A K Britton
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1121
GENERAL ADMINISTRATIVE DIVISION ) Re Prehector Trocio Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date14 June 2011
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd].........................
Senior Member A K Britton
CATCHWORDS
MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – decision under review affirmed
Migration Act 1958 (Cth) – ss 499, 501
Administrative Appeals Tribunal Act 1975 (Cth) – s 35
Crimes Act 1900 (NSW) – s 349
Direction [no. 41] – Visa refusal and cancellation under s 501
R v Almirol [No 2] [2007] NSW SC 323
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385
Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445
REASONS FOR DECISION
Senior Member A K Britton
Orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth)
Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), access to a version of these Reasons containing paragraphs 59 to 62, is restricted to the legal representatives of the parties and members of the staff of the Tribunal requiring access for the performance of their duties.
The legal representatives of the parties and members of the staff of the Tribunal must not disclose the information contained in paragraphs 59 to 62 of these Reasons.
1.Mr Prehector Trocio is currently serving a 12-year sentence for his first and only conviction, “murder as a principal in the second degree”. He has been imprisoned since April 2003. Shortly after Mr Trocio became eligible for parole, the Minister for Immigration and Citizenship decided to cancel his Australian visa. Mr Trocio has applied to the Administrative Appeals Tribunal for review of that decision.
2.Mr Trocio is 38 years of age. He was born in, and is a citizen of, the Republic of the Philippines. Except for a short period when he returned to the Philippines, he has lived in Australia continuously since September 1996. He was granted a permanent spouse visa in March 2003.
3.Mr Trocio’s former wife filed for divorce in December 2008. The 10-year-old daughter of that relationship lives with her mother and has been in regular contact with Mr Trocio throughout his incarceration.
Power to cancel Mr Trocio’s visa
4.It is agreed that Mr Trocio does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (“the Act”).
Confidential evidence
5.With the consent of the parties, I made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to prohibit the disclosure of some evidence received in these proceedings, to all but the legal representatives of the parties. That evidence is considered in a version of these Reasons that will be provided to the legal representatives of the parties and is subject to further orders made under s 35 of the AAT Act.
Background
6.Mr Trocio was arrested in April 2003 for the murder of co-worker, Mr Palatavake Tauveli. He entered a guilty plea to the charge of “murder as a principal in the second degree”. In 2005, he was sentenced to 12 years’ imprisonment, with a non-parole period of eight years. Eighteen months later, Mr Trocio’s co-accused, Mr Angelito Almirol was found not guilty of having murdered Mr Tauveli: R v Almirol [No 2] [2007] NSWSC 323. Mr Almirol subsequently pleaded guilty to the charge of being an accessory after the fact to murder: s 349 of the Crimes Act 1900 (NSW).
7.Mr Trocio was sentenced on the basis of agreed facts which state in part:
…. When [Trocio] arrived at [a house in Sydney where Almirol had been staying] Almirol and the victim were present and both persons were intoxicated. Trocio stated that the deceased was drunk as he saw him staggering to the toilet before he was killed. Shortly after Trocio arrived he alleges that Almirol and the victim became involved in a heated argument, he was not aware how the argument started or what it was over. During the argument, the deceased said to Trocio ‘I kill you, I kill you.’ At that stage, Trocio feared for his safety. Because of this [argument] Trocio claims he left the house. He alleges that shortly after leaving Almirol rang him on his mobile phone four or five times and asked him to return. Trocio claims he didn’t want to go back but decided he should.
Trocio states that as he walked in the backdoor of the house Almirol raised a chair and struck the victim over the head with it. The victim fell to the ground and was unable to regain his feet. Whilst the victim was on the ground he attempted to pull Almirol to the ground with him. Almirol went to the kitchen and obtained a machete type knife. Almirol walked back to the victim, who has still been unable to regain his feet after being struck with the chair, and cut his throat using the machete. The victim looked at Almirol and said “It was only a joke, it was only a joke.” Almirol cut the victim’s throat a number of times using a sawing motion. While this occurred Trocio stood at the door watching out for someone coming in because Almirol told him to. Almirol then asked him to check the victim for a pulse. Trocio did this and could find no pulse. When Trocio informed Almirol of this he allegedly replied “So what?”
Almirol and Trocio then wrapped the victim in a bed sheet and left him where he was. Trocio claims he went home shortly after wrapping the victim in the sheet. He was at home for a short time when Almirol rang him and asked him to come back. He discussed this with his wife who told him not to, however he decided to return. Upon his return to the premises he assisted Almirol dragging the body into a bedroom at the front of the premises. Almirol and Trocio then slept at the house for a while before Trocio returned home in early hours of the morning.
The next day Almirol and Trocio both attended work. At the completion of work they returned to [the house where the murder took place]. Shortly after arriving at the premises they moved the body from the bedroom to the bathroom. Trocio alleges that at this point Almirol used a hacksaw to cut up the victim; he claims that it was too gruesome for him and he kept a watch at the front door. After the body had been cut up they placed the body pieces into garbage bags and carried them out to a car in the garage. Trocio then drove the vehicle with Almirol as a passenger to the Blue Mountains where they disposed of the body parts in the locations they were later discovered.
8.James J said on sentencing that although Mr Trocio’s only participation in the murder had been to “act as a lookout” for Mr Almirol, Mr Trocio had done a number of things with the intention of concealing the murder:
·Wrapping the body of the victim in a sheet with Mr Almirol on the day of the murder and dragging the body into a bedroom
·Keeping watch while Almirol dismembered the body with a hacksaw the following day. [In these proceedings, Mr Trocio admitted that he also held the body whilst Almirol dismembered it]
·Placing the body parts in garbage bags and carrying them to a vehicle
·Disposing of the bags in three different locations in bushland about 70 kilometres from the scene of the murder
·Assisting Mr Almirol to leave Australia to avoid detection.
Background
9.Tendered in these proceedings were a large number of letters of support for Mr Trocio’s application to remain in Australia, prepared by members of his family and church and friends. Most referees stated that they were aware of the nature of Mr Trocio’s crime, believed it to be “out of character” and that he had expressed deep remorse. All attested to his good character.
10.Throughout his period of imprisonment Mr Trocio has enjoyed the support of friends and extended family. Mr Trocio is particularly close to two aunts, Ms Evelyn de Jesus and Ms Zenda Dajao who have visited him regularly in prison and maintained contact with his daughter. One aunt has offered him accommodation in her home if he is permitted to stay in Australia. Both gave oral evidence in these proceedings.
11.Until mid-2009, Mr Trocio received regular visits from his former wife, Ms Marie Dave, including throughout the 15-month period he was based in correctional centres in rural NSW. In September 2010, Ms Dave wrote to the Department of Immigration advising of her decision to withdrawn “spousal sponsorship” of Mr Trocio and that she held “deep concern and fear for my family and myself”. She stated that she was concerned about how he would react when he learnt of her “new family situation”. Ms Dave is now in a de facto relationship. She and her new partner have been living together since late 2009 and have a 4-month-old child. Mr Trocio testified that he had no ill feelings towards Ms Dave or her new family and was grateful for the support she had provided to him throughout his period of imprisonment.
12.In oral evidence, Ms Dave stated that in June 2010 she became “very confused” after watching a whodunit style television program — The Suspects: True Australian Thrillers — which featured the conflicting accounts given by Mr Almirol and Mr Trocio about the subject murder. She stated that she took steps to obtain court documents under Freedom of Information legislation. She stated that while the information gleaned from those documents and the television program did not led her to suspect that Mr Trocio had actually killed Mr Tauveli, it did lead her to suspect that his level of involvement was greater than she had originally appreciated.
13.Ms Dave stated that while Mr Trocio is a “nice man” who cares for people, he can be different when he drinks. She claimed that prior to his incarceration he had occasionally verbally abused her. She also alleged that while he never hit her directly, on one occasion he whacked her on the face with a newspaper because their daughter, then a baby, who she was holding had been crying incessantly. She testified that since the early days of their relationship she had held concerns that he might be a candidate to become a violent man.
14.She stated that if Mr Trocio were to remain in Australia she would only permit him to visit their daughter if he had a court order. She stated that in her opinion all visits should be supervised and held in a visitation centre. In a statement prepared for these proceedings she wrote that she thought those conditions necessary because she was concerned about how he might react if the child misbehaved. In oral evidence she stated that her fears would not be allayed if the visits occurred at the home of one of Mr Trocio’s aunts. She explained that while she recognised that her daughter was close to both aunts, she was concerned that if the visits occurred at one of their respective homes, after a while Mr Trocio would become absorbed in adult conversation and ignore the child. She said if his claim of wanting to have a real relationship with his daughter was genuine, he needed to put in the effort. She also stated that she was concerned that he might kidnap the child.
The exercise of the power to cancel Mr Trocio’s visa
15.“Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”), issued by the Minister under s 499 of the Act must be applied by all decision-makers, including the Tribunal exercising the power to cancel a visa under s 501 of the Act.
16.The Direction instructs that due consideration is to be given to the Government’s objectives as set out in the preamble to the Direction:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
17.The Direction lists a number of “primary” and “other” considerations that must be taken into account by the decision-maker, and instructs that “other considerations” — namely those listed at cl 11 — should generally be given less weight than primary considerations: cl 11(2).
18.The primary considerations are set out in cl 10(1) of the Direction:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Primary considerations
(A) Protection of the Australian Community
19.Factors relevant to assessing the risk of harm to the community of Mr Trocio’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii), the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.
(i) Seriousness and nature of the conduct
20. The Direction sets out at cl 10.1.1(1) a number of factors that must be taken into account in assessing the seriousness and nature of the offending conduct:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
21. Murder is the first of a number of offences listed by the Direction as examples of offences considered “serious”: cl 10.1.1(2).
22. Clause 10.1.1(3) of the Direction states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
23.Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
…
24.At their respective trials, both Mr Trocio and Mr Almirol claimed that the other had murdered the deceased. Neither suggested that a third party murdered Mr Tauveli. Their respective convictions for “murder as a principal in the second degree” and “accessory after the fact to murder” are irreconcilable and indicate that one gave false evidence at trial. Nonetheless, as accepted by the Minister, it would be inappropriate in this case to “go behind” the facts found by James J in the sentencing and conviction of Mr Trocio: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. Accordingly, in the assessment of both the seriousness of the subject offence and the risk that Mr Trocio might re-offend, I must proceed on the basis of the facts as found by the sentencing court. However, in my opinion, I am entitled to have regard to the admissions made by Mr Trocio during these proceedings that were not referred to by the sentencing judge or the agreed facts namely, kicking the deceased in the back while he was lying on the ground and holding the body while it was dismembered by Mr Almirol.
25.There is no argument that Mr Trocio’s offence, although “one-off”, was serious in nature however not as serious as the offence of murder in the first degree.
(ii) Risk that the conduct might be repeated
26.In assessing the risk that the conduct will be repeated, the Direction instructs that Mr Trocio’s “previous general conduct” and “total criminal history” are to be considered “highly relevant” and the factors listed at cl 10.1.2(2) “particularly relevant”.
Total criminal history
27.As noted the subject offence is the sole offence for which Mr Trocio has been convicted.
Previous general conduct
28.Apart from that given by Ms Dave, the only adverse evidence about Mr Trocio’s general conduct concerns his behaviour while in the Philippines. A progress note compiled by prison Psychologist Catherine Cheung on 19 January 2006 records the following details reported by Mr Trocio:
[W]hen he was doing drugs (ie cannabis and tranquilisers) … in the Philippines … he … thought that his family were trying to kill him …when they tried to hold him down, he broke a bottle, stabbed his uncle in the cheek and held his mother hostage with a broken bottle … they managed to pacify him …
Recent history of re-offending
29.The subject offence was committed close to 10 years ago and is the sole offence for which Mr Trocio has been charged or convicted.
Evidence of rehabilitation
30.James J said on sentencing:
I accept that the prisoner has no previous criminal history, that he has committed no prison offence during more than two years in custody, that he is unlikely to re-offend and that he has good prospects of rehabilitation.
31.Mr Trocio was assessed by psychologist Ms Randa Abdelsayed at the request of the NSW Serious Offenders Review Council. In a report dated 28 August 2008, Ms Abdelsayed wrote that in her opinion the risk of Mr Trocio re-offending in a violent manner was minimal. She stated that her opinion was based on clinical interviews, actuarial assessment and available records. She employed the Violent Risk Appraisal Guide (VRAG) in her assessment, which she described as a tool designed to assess men who have committed serious violent offences. Mr Trocio’s score under VRAG fell within the “low/moderate” range.
32.Ms Abdelsayed wrote that Mr Trocio’s prison records reflected “good institutional conduct” and that while in custody he had maintained employment, attended educational classes and completed a number of programs including “anger management”. She noted that he reported a good level of support from family and community contacts.
33.More recently, Mr Trocio was assessed at the request of the Minister by psychiatrist, Dr Kipling Walker. In a report dated 17 May 2011, Dr Walker stated that in his opinion Mr Trocio did not suffer from a psychiatric condition or require psychiatric or psychological treatment. He wrote that in his opinion, psychiatric risk assessments are unreliable and their value, where the person assessed does not suffer a mental illness, unclear. In a supplementary report, Dr Walker declined to proffer an opinion about the risk that Mr Trocio might re-offend, repeating that in his opinion, clinical and actuarial risk assessment “cannot accurately predict an individual’s risk of recidivism”.
34.Dr Walker was asked by the Minister to comment on the relevance of the evidence that Mr Trocio had suffered from persecutory delusions while living in the Philippines (see par [28]). In Dr Walker’s opinion, this evidence indicated that in the past while affected by illicit drugs, Mr Trocio had developed persecutory delusions and acted on those beliefs. From that he concluded that Mr Trocio’s risk of causing serious physical harm to others would increase if he were to use illicit drugs. He noted however that consistent with Mr Trocio’s self-report, there was no evidence that he had used illicit drugs since arriving in Australia or that he had suffered any psychotic disorder during the period of his incarceration. Dr Walker thought that while alcohol could also increase the risk Mr Trocio might pose to others it was “much less likely” to than drugs.
35.An immigration report prepared by probation and parole officer, Ms Teresa Sartor in December 2008, noted that during Mr Trocio’s time in custody there had been no adverse reports about his conduct. She noted that while incarcerated Mr Trocio had undertaken educational and other programs and progressed to a satisfactory level and was considered to have a good work ethic and be a reliable worker. Ms Sartor also noted that while initially Mr Trocio had difficulties adjusting to prison life, the evidence did not suggest that he had suffered from any mental disorder or illness while incarcerated. She noted that Mr Trocio has had regular visits from his large extended family and regular phone contact with his wife and daughter. Ms Sartor recorded that Ms Dave told her that that his family was religious and had supported and forgiven him for his crime.
36.Mr Trocio is currently classified by the NSW Department of Corrective Services as “C3”, a minimum security classification level allowing unsupervised day, weekend, education and work release into the community. In January of this year Mr Trocio commenced full-time work in the community under a work release program. Approval was withdrawn about 10 weeks later when Mr Trocio’s visa was revoked. A letter of support, provided by the person who had employed Mr Trocio during that program, was tendered in these proceedings. He stated that Mr Trocio was well mannered, hard-working, likeable and highly regarded by work colleagues and management alike. The employer stated that he would not hesitate to re-employ Mr Trocio on his release from prison.
Evidence of breaching judicial orders etc.
37.There is no evidence of Mr Trocio’s breaching these types of orders.
Findings and conclusions
Protection of the Australian community
38.The primary consideration of the protection of the Australian community requires consideration to be given to both the seriousness of the subject conduct and the risk that it might be repeated. As Counsel for Mr Trocio points out, the Direction is to be construed in light of the Government’s stated objective — “the protection of the Australian community”. Deterrence and further punishment are irrelevant considerations.
39.The Tribunal’s task “is one of ‘assessing any risk of re-offending’ having regard to the ‘highly relevant’ and ‘particularly relevant’ factors set out in subcll (1) and (2) of cl 10.1.2”: Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362 at 372-373.
40.While the parties agree that the subject offence was serious in nature they differ about the degree of risk posed by Mr Trocio. The Minister concedes that while the risk of re-offending is low given the gravity of the subject offence, that risk is unacceptable. Counsel for Mr Trocio submits that cl 10.1 of the Direction directs the Tribunal to consider the risk that “the conduct”, namely the offence or conduct that resulted in Mr Trocio failing the character test, be repeated, citing in support Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358 (Obele) at 365. Counsel contends that it is inherently unlikely that the subject offence would be repeated, because the prospect of him again “involuntarily witnessing a murder” and then assisting with the clean-up and disposal of the body is “extremely remote”.
41.In Obele, Katzmann J considered the scope of the inquiry required to be made by the decision-maker in assessing the primary consideration — the protection of the Australian community. Her Honour noted that the “precise relationship” between paragraph 10.1(2)(a) — “the seriousness and nature of the relevant conduct” — and paragraph 5.2(2)(a) — the nature of any harm that the person concerned may cause to the Australian community” — is unclear. She went on to note:
The relationship was not fully explored in argument before me, although it was common ground that, in some sense, paragraph 5.2(2) was elaborated or made more determinate by paragraph 10.1(2) (and the following paragraphs which give further guidance in relation to the latter paragraph). This seems correct to me. Paragraph 10.1(2) presupposes as much, because it assumes that the decision-maker is required to consider the potential for harm to the community if the person continues to be entitled to reside within it, which is the subject given to her or him to consider by paragraph 5.2(2).
In oral submissions, Ms Baw, who appeared for Mr Obele pro bono, seemed to take the position that paragraph 5.2(2) was exhausted by paragraph 10.1(2), so that, in effect, the decision-maker need only apply paragraph 10.1(2) to the circumstances of the case in order to comply with the direction in paragraph 5.2(2).
Whether this proposition is correct is something that, in my view, should be left to an appropriate case in which to fully explore its implications. For the purposes of this case, it is sufficient to note that it is clear enough that the Tribunal was required by the Direction to have regard to the potential harm Mr Obele might cause to the Australian community in the future and that its assessment – a prediction, in effect – of this was to be a function of two matters: considering the risk of some harm occurring (that is, its probability) and the “nature” of that harm (in the words of 5.2(2)) or “the seriousness and nature of the relevant conduct” (in the words of 10.1(2)).
42.The above passages, in particular the final sentence, do not in my opinion support the restricted meaning of cl 10.1.2 suggested by counsel for Mr Trocio. In my opinion the assessment I am directed to undertake in respect of cl 10.1.2 is not restricted to a consideration of the risk that Mr Trocio might commit an identical or materially identical offence in the future. The relevant issue in my opinion is whether there is a real risk he will commit a further serious offence (or offences), or some other form of serious misconduct, short of murder, that jeopardises the safety of the Australian community.
43.Before discussing the matters required to be taken into account by cl 10.1, it is necessary to address the evidence given by Ms Dave. Even if accepted, the disputed account of Mr Trocio whacking Ms Dave across the face and verbally abusing her, while unfavourable is not suggestive of a pattern of violent conduct. Furthermore, while in correspondence with the Department and in statements prepared for these proceedings Ms Dave claimed that she held concerns for her family’s safety if Mr Trocio were to remain in Australia, in oral evidence she appeared to resile somewhat from that position. Her stated belief, that it would be beneficial for her daughter to have regular contact with Mr Trocio and the explanation given in oral evidence about why she believed any contact should be supervised — because the child deserved her father’s undivided attention and because he might not respect the custody arrangements currently in place — sits uncomfortably with her claim that she was fearful of her husband.
44.I do not accept Ms Dave’s claim that her concern about her former husband’s predilection to violence is long held. That claim is inconsistent with her practice of, until relatively recently, maintaining regular contact with her husband at significant personal cost and, more significantly, her diligent efforts to facilitate regular contact with their daughter. It is also inconsistent with the flavour of her conversation with Ms Abdelsayed in late 2008, recorded in Ms Abdelsayed’s report to the Serious Offenders Review Council. It seems to me likely that following the television program and reading material about Mr Almirol’s trial, Ms Dave has come to review and possibly reconstruct her husband’s past conduct towards her.
45.There is no significant dispute about the factual matters required to be taken into account under cl 10.1(2). What is disputed is the conclusion to be drawn from those facts.
46.The following factors are supportive of Mr Trocio’s assertion that he does not pose a risk of re-offending. First, apart from the subject offence the only evidence of Mr Trocio’s involvement in any serious violent conduct are the incidents in the Philippines involving family members. Otherwise Mr Trocio’s “previous general conduct” is unremarkable. Second, his “total criminal history” consists of the one, albeit, serious offence. Third, there is no history of recent offending. Fourth, his conduct in prison has been exemplary. Fifth, he has expressed remorse for his crime and a large number of people from various walks of life attest that they believe his expression of remorse to be genuine. Sixth, the weight of “authoritative opinion” is that he is unlikely to re-offend. While Dr Walker declined to express an opinion on this issue, his opinion was nonetheless generally favourable to Mr Trocio. Seventh, there is no evidence of Mr Trocio using illicit drugs or suffering from a psychiatric condition since his arrival in Australia, factors which, according to Dr Walker, if combined, would increase his risk of causing serious physical harm to others. Eighth, if released Mr Trocio will have stable accommodation, ongoing support of family and friends and reasonable employment prospects. Ninth, the weight of lay opinion is that he does not pose a risk to the Australian community. Tenth, Mr Trocio attests to having strengthened his religious convictions while in gaol. The testimonials provided by Evelyn de Jesus, Zenda Dajao and Fr. Peter Carroll MSC support that claim. His religious beliefs could act as a protective factor against further offending.
47.While powerful evidence I cannot agree with the contention put for Mr Trocio that he poses “almost no risk of re-offending”. It goes without saying that there can be no absolute certainty that any person will never commit a serious offence or some form of serious misconduct. That of course is not the type of risk contemplated by cl 10.1(2)(b) — the relevant risk is not a mere theoretical or possible risk but a real or probable risk. We can only rely on past experience and general experience to make predictions about probabilities in individual cases. Less confidence can be placed in a person who has committed a serious offence than in a person who never has and who has never shown signs of doing so. While powerful evidence of Mr Trocio’s rehabilitation I am nonetheless troubled by the fact that there is no apparent explanation for his participation in the murder. Nor is there evidence of any mitigating factor that might explain (if not excuse) his involvement in the crime. In addition, while not pre-meditated, his participation in the concealment of the murder was not a momentary spontaneous act but rather took place over an extended period. While arguably his decision to act as a ‘look out’ while Mr Almirol slit the throat of the deceased could be explained on the basis that it happened so quickly he had little time to reflect and remove himself from the situation — the same could not be said about his participation in the concealment of the crime. While I do not expect that he would instigate a serious offence, his acquiescence in the commission of one demonstrates exceptionally poor judgment and I could not be satisfied that if he were again placed in circumstances conducive to the commission of serious misconduct, the risk of re-offending would be insignificant or immaterial.
48.While Mr Trocio poses a low risk of re-offending, given the serious nature of the conduct the primary consideration of the protection of the Australian community from serious criminal conduct, particularly violent crime, weighs against him.
(B) Age when Mr Trocio began living in Australia
49.Mr Trocio was 23 years of age when he started living in Australia. He contends that this factor is therefore irrelevant to the exercise of the power to cancel his visa. The Minister, on the other hand, citing Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396 contends that this consideration weighs against Mr Trocio. In my opinion while this consideration weighs against him, it does so to a negligible extent.
(C) Length of Time Resident in Australia
50.Under the Direction, “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: cl 10.3(1).
51.The Minister submits it is relevant for the purposes of cl 10.3(1) that Mr Trocio was not granted a permanent resident visa until after the commission of the offence. I do not agree with that proposition. Clause 10.3 is concerned with the length of time a person has been “ordinarily resident in Australia” noting that the “longer a period of residence in Australia, the greater the likelihood of significant ties to the Australian community”. There is nothing to suggest from either the construction of cl 10.3 or its context, that the phrase “ordinarily resident in Australia”, should be read as meaning the period where the visa holder was a permanent resident.
52.Mr Trocio was “ordinarily resident” in Australia for just six years before the commission of the offence. By that time he had not inconsiderable ties with the Australian community — he was married to, and the father of Australian citizens and had a number of relatives living in the country. This factor weighs in Mr Trocio’s favour but given the relatively short period he was resident in Australia before the commission of the offence, not to a great extent.
D. The best interests of the child
53.The Direction provides that under Australian law, it is generally presumed that a child's best interests will be served if the child remains with their parents: cl 10.4.1(4). There is no evidence and nor is it suggested that the presumption is rebutted in this case: cl 10.4.1(4)
54.Clause 10.4.1(5) lists a number of factors that must be considered in assessing the best interests of the child. I address those factors below in no particular order.
55.Mr Trocio’s only child is the 10-year-old daughter who has been mentioned in these reasons. She was born in, and is a citizen of, Australia. She lived with both parents until Mr Trocio was incarcerated when she was two and a half years of age. Throughout the period of her father’s incarceration she has lived with her mother and more recently also with her mother’s partner and step-sister. According to Ms Dave the child and her new partner have a “great relationship” and he is “the father she never had”. The Family Court has granted Ms Dave sole custody. Ms Dave states that she will oppose any moves to vary that arrangement. Her opinion about access visits if Mr Trocio were to remain in Australia is discussed above.
56.Both Mr Trocio and Ms Dave testified that they have not disclosed the nature of the crime committed by Mr Trocio to the child and as far as they are aware, she does not know the nature of the offence.
57.Ms Dave claims that her daughter has a superficial relationship with her father. While she accepted that her daughter cares for her father, she stated that she did not know to what extent. In contrast, Mr Trocio claims that he has a close relationship with his daughter. He states that when she visits him in gaol she is always affectionate and runs to greet and hug him. That claim is supported by his aunts and others who gave evidence in these proceedings. In support of that claim Mr Trocio produced a number of cards and letters he had received from his daughter in which she wrote: “I love you … You rock … I wish you could come home soon”. Ms Dave thought that the writing indicated that the cards were written when the child was about six years old. Mr Trocio thought some were more recent.
58.A confidentiality order has been made under s 35 of the AAT Act in respect of the following four paragraphs. They will appear in a version of these reasons that is only provided to the legal representatives of the parties.
59.[Subject to orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).]
60.[Subject to orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).]
61.[Subject to orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).]
62.[Subject to orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).]
Conclusions
63.I accept that Mr Trocio and his daughter love and care for each other. The development of their relationship has probably however been hampered by the limited and artificial nature of their contact over the past eight years.
64.While not possible to say what orders would be made by the Family Court upon Mr Trocio’s release if he were to remain in Australia, given that he has lived apart from the child for over eight years, it seems most unlikely that the current custody arrangements would change but probable that he would be granted access. There can be little doubt that the child would remain in Australia if Mr Trocio were to be deported.
65.Given Mr Trocio’s obvious commitment to his daughter, I am confident that he would endeavour to maintain contact by phone and electronic means. While without better evidence it is impossible to say with absolute certainty, I think it unlikely that the child would be seriously affected if her father were to be deported. Her contact with him to date has been extremely limited and I am confident that she would continue to enjoy regular contact but not physical contact if he were to leave Australia. Nonetheless if Mr Trocio were to be deported the child would be deprived of the opportunity to develop a closer relationship with her father and therefore in my opinion her interests would be best served if he were to remain in Australia. While this consideration favours Mr Trocio, it does not favour him to the extent it might have, had he not lived apart from the child for most of her life and is most unlikely to resume a full parental role before the child turns 18 years of age.
Other considerations
66.The Direction specifies a number of “other considerations” that must be taken into account, if relevant. They should generally be given less weight than the four primary considerations: cl 11(2).
Family and other ties
67.Mr Trocio has significant ties with family and friends in Australia who have supported him throughout his incarceration. He also has ties to his church.
Age and health
68.Mr Trocio is relatively young and apparently in good health.
Links to the Philippines
69.Mr Trocio has not lived in the Philippines for about 16 years. He has some family in the Philippines but claims that if he returns, his retired parents would be unable to assist him financially or provide accommodation.
Hardship likely to be experienced by Mr Trocio
70.I accept, as claimed, that Mr Trocio would suffer some hardship if he were to return to the Philippines. First and most importantly, he would suffer the hardship of being physically removed from his daughter. Second, he would lose the extremely supportive network of family and friends he has in Australia. Third, he would return to an uncertain employment environment in a country where he has not lived for over a decade. It is a matter of common knowledge that the Philippines has a higher rate of unemployment than Australia.
Hardship likely to be experienced by Mr Trocio’s family members resident in Australia
71.Mr Trocio would no doubt be missed by members of his extended family, especially his two aunts, if he were to return to the Philippines. There is no evidence however that any member of his family would suffer any financial or other hardship if he were to return to the Philippines.
Level of education
72.Mr Trocio describes himself as having a “basic level” of education. Nonetheless, he does not suggest that he is unable to advocate for himself because of his level of education. The various vocational courses undertaken while in prison would probably assist him make a more positive contribution to the Australian community that he was capable of making, prior to his incarceration.
Notification of possible deportation
73.Mr Trocio was not notified that his criminal conduct might result in his visa being revoked, prior to the decision the subject of this review.
Conclusions
74.Of the “other considerations” the hardship likely to be experienced by Mr Trocio if deported is the most significant, particularly his removal from those members of his family resident in Australia, most significantly his daughter. The balance are either irrelevant or not especially favourable to Mr Trocio. Overall the other factors weigh in Mr Trocio’s favour
Decision
75.In deciding whether to exercise the discretionary power to cancel Mr Trocio’s visa, I must take into account the four primary considerations and any “other” relevant factor and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.
76.As discussed I have concluded that while Mr Trocio poses a low risk of re-offending it could not be categorised as an immaterial or negligible risk and for that reason, the primary consideration of the protection of the Australian community, weighs against him. That finding is not determinative and must be balanced against those factors that favour Mr Trocio, namely the best interests of his daughter, the length of time he has resided in Australia and the “other considerations”, primarily his links to Australia and the hardship he will suffer if removed from his daughter. Of those considerations the best interests of Mr Trocio’s daughter is the most significant. I have decided however that in this matter that and the other considerations that favour Mr Trocio do not outweigh the primary consideration of the protection of the Australian community and for that reason I have decided that the preferable decision is to cancel Mr Trocio’s visa.
77.For these reasons, the decision under review is affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ................................[sgd]....................................
Associate to Senior Member BrittonDates of Hearing 25 and 26 May 2011
Date of Decision 14 June 2011
Counsel for the Applicant Mr N Poynder
Solicitor for the Applicant Ms L Soliman, Gateway Law
Solicitor for the Respondent Ms K Hooper, DLA Piper
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