Ushakov and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 761
•7 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 761
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/872
GENERAL ADMINISTRATIVE DIVISION ) Re
Anton Ushakov
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date7 August 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the discretion to cancel the Applicant's visa under s 501(2) of the Migration Act 1958 not be exercised.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – DEPORTATION – cancellation of Bridging Visa C pursuant to section 501(2) of the Migration Act 1958 - decision of the Respondent that the Applicant fails the character test pursuant to section 501(6)(a) of the Act – substantial criminal record –- discretion that the Tribunal may exercise where the Applicant fails the character test – examination of the Applicant’s migration status – necessity to consider the protection and expectations of the Australian community – held that the Applicant poses no risk to the Australian community – discretion in s 501(2) should not be exercised to cancel the Applicant’s visa.
Migration Act 1958 ss 499, 499(1)(2), 501(2), 501(6)(a), 501(7)
Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456
McAuliffe and McAuliffe v R 79 A Crim R 229
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
7 August 2003 Mr RP Handley, Deputy President 1. This is an application by Anton Ushakov (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) to cancel the Applicant’s Bridging Visa C.
2. At the hearing, the Applicant was represented by Nicholas Poynder, of Counsel, and the Respondent was represented by Andrew Grimm, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the G Documents”) together with a statement tendered by the Applicant dated 24 July 2003 (A1). Oral evidence was given by the Applicant and Elvira Kim and telephone evidence was given by Martyn Gifford, and by the Applicant’s mother Galina Ushakova.
Background
3. The Applicant, Anton Ushakov, was born in Chita, Russia, on 29 April 1981 (G p178) and is aged 22. Since the age of about three, he and his family have lived in Yuzhno–Sakhalinsk on Sakhalin Island which is part of the Russian Federation to the north of Japan. On 11 May 2001, Mr Ushakov came to Australia on a subclass TU 560 student visa, which was issued on 29 April 2001 (G p55). This visa expired on 8 June 2001, at which time Mr Ushakov was granted a further subclass TU 560 student visa which expired on 2 December 2001 (G p55). On 11 December 2001, Mr Ushakov applied for a subclass TU 573 student visa. On the same day, he was granted a Bridging Visa C (BC 030).
4. On 19 December 2001, Mr Ushakov was arrested and charged with malicious wounding and two counts of assault occasioning actual bodily harm (G p17). On 27 August 2002, Mr Ushakov appeared before the District Court of New South Wales and pleaded guilty to one count of malicious wounding and two counts of assault occasioning actual bodily harm. On 11 October 2002, he was convicted and sentenced by Acting Judge Nash of the District Court to a term of imprisonment of one year, one month and two weeks, with a non-parole period of seven months (G p3).
5. On 24 December 2002, Mr Ushakov was issued with a Notice of Intention to Cancel visa. On 19 February 2002, Mr Ushakov’s Bridging Visa C was cancelled pursuant to s 501(2) of the Migration Act 1958 (“the Act”) on the ground that he does not pass the character test because of his substantial criminal record. Mr Ushakov was notified of this decision by letter dated 29 May 2003 and on 30 May 2003 lodged an application for a review of this decision by the Tribunal. He is currently being held in Villawood Immigration Detention Centre.
Relevant Law and Policy
6. Under s 501(2) of the Act, the Minister may cancel a visa that has been granted to a person if
(a)the Minister reasonably suspects that the person does not pass the character test, and
(b) the person does not satisfy the Minister that the person passes the character test.
7. 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 are met. The relevant ground in the current matter is paragraph (a), as follows:
(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 “has been sentenced to a term of imprisonment of 12 months or more”.
8. 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. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
9. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
10. There is no dispute that Mr Ushakov does not pass the character test because of his “substantial criminal record”.. The issue, therefore, is whether the Tribunal should exercise the discretion in s 501(2) to cancel Mr Ushakov’s visa.
Evidence
Anton Ushakov (the Applicant)
11. Mr Ushakov provided a statement dated 24 July 2003 (A1). In 1998, he enrolled in an undergraduate program in the Department of Russian Language and Literature at Sakhalia State University. After completing his third year, he decided to take a break in Australia and master his English skills. On arrival in Australia, he embarked on a six month English course which he completed with good results. He then enrolled in a Business Diploma specialising in International Trade at the Sydney campus of James Cook University.
12. Mr Ushakov stated that he has been friends with Elvira Kim since they were at school together and their families are next-door neighbours in Yuzhko–Sakhalinsk. They commenced a boyfriend/girlfriend relationship in their later years of high school and lived together in a de facto relationship after Mr Ushakov came to Australia.. Ms Kim has completed a Diploma of Business Administration at Macquarie University and is currently studying information technology. Mr Ushakov said their de facto relationship has now ended although they remain friends.
13. In his statement, Mr Ushakov described the events which led to his being charged and convicted. It is appropriate to include the relevant description here:
Alexander Aizelman
16.I met Alexander Aizelman on the second day of my arrival. Elvira introduced me to him; he was a very good friend of hers. Alex’s college was in the city, as was mine. We used to meet after our studies and go for a lunch or do things together six days a week.
17.After a little while Alex moved next door to Elvira and me. We became very good friends, because I found him to be a very kind, friendly and honest person with a good sense of humour. Alex was 18 years old at that time. In first couple weeks I met a lot of Russian guys in the Russian community, aged mainly 16-27 years. Most of them were students and were staying in Australia on Student visas. They were “Kids of new Russians”; “New Russians” being the name for rich people in Russia.
I8.In the very beginning I felt some sort of tension between Alex and the other Russians. They used to make fun of him all the time and I could see he didn’t like it, but he was quiet about it. I didn’t think it was a big deal at first. But later on I found out that Alex’s nickname was “Bubble”, which before was “Double” and was transformed with time. The nickname “Double” was given to Alex because he is of Jewish background and came from a city in Ukraine called Odessa. Most of the population in Odessa are Jews, so “Dubi” meant double Jewish.
19.Alex’s former best friend and former flatmate Alexandr Chevtchenko gave this nickname to Alex. After a while, everyone in the Russian community started to call him by this nickname and said how suited him. Alexandr asked everyone not to call him by this nickname so many times, because it hurt him so much. But it was hopeless, they still called him “Bubble” to make him see who was who here, like to sort of put him in his place.
20.I could see Alex’s suffering about all these Jewish jokes. He was ashamed of being a Jew. I remember if someone asked where he was from he used to say he was Russian. He tried not to tell his last name because it would have given him up. He didn’t go out to any Russian party or any place where he could meet other guys from the Russian community. He was discriminated against.
Bondi Beach meeting
21.It came to a point when Alex couldn’t take it any more. When one of the Russian guys, whose name was Sosian Dziev, rang him on his mobile phone and started calling him “Bubble” whilst in conversation, Alex told him to shut up and swore at him. Dziev got very aggressive and told Alex to meet him at Bondi Beach near the cliff lighthouse at 10:00pm to talk. Alexandr understood that this meeting was not just to talk, but also he might get assaulted. But he wanted to go for the meeting because he wanted to stop the verbal abuse particularly with the use of the nickname.
22.Dziev was 26 years old at the time. He is of Chechen background. He used to serve in the Russian Navy where they teach how to kill people without weapons. As you probably saw on the news, there are many terrorist acts happening in Russia involving Chechen suicides. For example in recent times, two Chechen women blew themselves up in the crowd in a rock concert. There were several casualties and injuries.
23.Dziev and a few other Russian guys had organised a gang of self-styled leaders of the Russian community. Everyone would sort of fear/respect them because no one wanted to have problems with them.
24.Alex called me and three of his other Russian friends whom I did not know on a personal level to be present at the meeting at Bondi Beach. When we arrived at the meeting point we saw about ten guys standing in the dark waiting for us. As soon as we arrived they began to verbally assault Alex with insulting and prejudicial language. We tried to calm the situation, but unfortunately they pounced on Alex and began assaulting him to the ground and they continuously kicked his head several times.
25.Alex’s other friends and I jumped in to defend Alex by trying to force them off Alex and calm the situation down as it was about to develop into a brutal and uneven fight. We tried to tell them to leave him alone and stop discriminating him with insults, but they would not listen to us. Then they declared that anywhere they see Alex, they would respond by attacking him with any means necessary.
26.Alex was bruised and was bleeding from the nose, but he refused to go to the hospital to seek treatment. So when we arrived home I saw the emotion on his face register hurt, disappointment and fear. Alex was thinking before the meeting that this would be the last time they would call him that nickname, as they were the leaders of the Russian community. But it did not happen that way. It only got worse because he got bashed, and the rumours would spread like wild fire within the community thus making him look like a weak individual.
27.Soon after that incident, Alex began receiving phone calls from many other Russians who kept on referring his thoughts back to what happened at Bondi Beach and laughing in his face about the incident. Others began intimidating him every time when he received phone calls. Alex was staying at home all the time in fear of being located or seen by those people that threatened him because they knew where he was studying, and where he lived. Because of his elevated fears, I had to go get him groceries and personal effects, seeing that he was so traumatised by the threats he received on the phone.
28.This happened for about one and a half months. At the same time Alex’s college Principal called his father with regard to his non-attendance at college for a long time. His father began calling him to investigate why Alex was not attending the college for which he paid as his son’s benefactor. Alex could not gain enough courage to tell his father what was really happening. His father was angry with him and exclaimed every word he said to Alex. This made the situation for Alex a whole lot more worse than before.
15 December 2001
29.On 15 December 2001 Alex called my mobile and asked me to come with him to Dziev’s apartment. He told me he wanted to talk to Dziev and sort out everything out so Alex could stop hiding from him and his friends. He didn’t want to be afraid no more and “face the enemies because he cannot hide forever”, as his father told him.
30.I met Alex and three of his other friends from the Bondi meeting in the city in George Street. Their names were Maxim Kvon, Dimitriy Petrenko and Pavlo Voloshyn.
31.We went to Chatswood where Dziev lived. It was at block apartments with a security entrance. The building block had a videophone buzzer to the apartments. We buzzed up the apartment and the main entrance door opened. We went up on the elevator to the sixth floor and went up to Dziev’s door. We knocked and one of them opened the door. There were three of them in the flat: Soslan Dziev, Igor Veniuhin, and Alexander Chevtchenko. Alexander Chevtchenko and Igor Veniuhin were sitting in the living room and playing on a Sony Play Station console. Dziev was taking a shower at the time. So we came in sat down and started talking about the problem.
32.Alex Aizelman and Alexander Chevtchenko started arguing and soon started fighting each other. We stopped the fight and continued to talk. Later Dziev emerged from the shower and joined the conversation. All Alex was asking was to stop the verbal abuse directed at him and just leave him alone. But the three of them would not agree saying that he deserved this kind of treatment.
33.The conversation was turning sour because both sides could not find a compromise. At one point one of the three called Alex some racially anti Semitic name and Alex reacted to this by jumping the fellow and then suddenly all of us were involved in the fight. Some were fighting whilst some were trying to stop it.
34.Dimitriy Petrenko grabbed a pair of scissors and tried to stab Dziev. Dziev ran into the bathroom and Dimitriy Petrenko followed suite after him. I stayed in the living room as I was trying to break up the fight.. I pulled Igor Veniuhin out of it, took him to the kitchen where I told him to sit down and keep calm. All of a sudden I heard a scream from the bathroom asking for help. Everyone who was there at the apartment ran towards the bathroom to see what was happening. We saw Dimitriy Petrenko standing in the bathroom holding a butterfly knife, arid Dziev was wounded. I was puzzled to see Dimitriy with a knife because I did not know he had it with him the whole time. At the time I couldn’t believe my eyes were witnessing such events and I began to feel an uncomfortable dizzy spell because of the fear and the sight of the blood.
35.I was trying to take care of Dziev’s cuts by bandaging them. Because of the events that occurred before me, I was traumatised with shock at what was happening and could not think clearly or have any time to gather my thoughts. I was unable to respond to the initiation of the violence to leave to seek assistance. I tried my best to calm and prevent the situation from worsening to extreme. If I knew what was going to happen that night I would not have come along as support for Aizelman at that moment.
36.Dimitriy Petrenko then commanded all the victims to sit in the living room, and he grabbed a wooden stick and started thrashing every one of the victims in a fit of rage. He kept on screaming to the victims in a questioning manner why they didn’t stop verbally assaulting Alex Aizelman, why they didn’t understand and force the occurrence of the situation. I thought he went crazy, and I myself was very fearful of him. He was not the kind of person I thought him to be, judging from his actions.
37.I saw Alexander Aizelman hitting the victims too. I think he went berserk in a fit of rage, as I guess his passion for revenge against his persecutors was being realised. Only Maxim Kvon and myself were trying to prevent the fight, and anything else happening.
38.Then suddenly the entrance door to the apartment was being opened. It was Dziev’s flatmate. He saw what was going, and he jumped in. Then the victims began grabbing anything within range and began using them to fight back. Chevtchenko hit Aizelman with an electric fan over the head and Dziev hit me on the head with what looked like a metal extension pipe from a vacuum cleaner. I started bleeding heavily from the concussion on my head. I fell to the floor and stayed there while the fight continued on for about 10 minutes.
39.Afterwards I felt someone pick me up and drag me out of the apartment. It was Voloshyn Pavlo who came to pick us up as he was told to. He took me down to his car and drove Alex Aizelman and me to the hospital.
40.When we got to the hospital I fell asleep while I was waiting for treatment. When I woke up, I saw police surrounding me. I was arrested and taken to the police station after I received treatment. I was taken to Silverwater the next day and released on bail.
Court case and aftermath
41.First of all I must declare in sincere and absolute truth that I am aware of the consequences of my actions on the night in question. I did not want to plead guilty to the charges because I did not assault any of the victims. I have never assaulted anyone at any time in my life. However I was advised by my solicitor to plead guilty, as the matter would drag out for a long period with investigations and possibly longer sentences for those pleading guilty if one of the accused pleaded not guilty. I then pleaded guilty not to the accusation of being involved in the assault of the victims, but by being present at the incident and not being able to act accordingly to prevent the situation from escalating into what culminated that night.
42.According to the court transcript on page 5 of my hearing on 11 October 2002, the Judge’s report stated that “Ushakov, and Aizelman hit and punched Dziev”.. From my recollection of the incident I can clearly and earnestly state that I was not involved in any form of direct or indirect assault on Soslan Dziev or any one of his acquaintances on the night in question.. My role in the meeting was to provide moral support for Aizelman and make sure that there was a truce between him and the victims. I was not aware nor had any prior knowledge that the meeting with Dziev his apartment would turn out the way it did.
43.According to the Court transcript on page 13 “Kvon and Ushakov did nothing to try and stop Petrenko”.. On the contrary, the element of fear of the capabilities of Petrenko that night engulfed me to the point that I could not act accordingly to stop him because of his ever-prevalent rage while he was holding a butterfly knife. Seeing the emotion of anger and him holding a blade shocked me because I did not know he had a butterfly knife and was unaware the whole occasion that he was in possession of such a deadly assault weapon.
44.Can you as an individual actually picture yourself trying to stop a man holding a blade with blood on it, running around an apartment with a fit of rage and showing no signs of an ease of his temper, which makes him seem so willing to take another man’s life? However I did attempt to calm him down and stop him from assaulting Dziev. From a personal perspective if I did not try to calm him down and stop him from assaulting Dziev, he would have probably assaulted Dziev much more than he actually did.
Martyn Gifford
14. Ms Gifford, who is a Welfare Officer at Oberon Correctional Centre, provided a statement in January 2003 (G Annexure G). She said Mr Ushakov undertook a Young Offenders Program at Oberon Correctional Centre between December 2002 and March 2003. Ms Gifford stated:
Though he has been charged and sentenced, Anton is not an aggressive, argumentative or violent person. It is incredible that this young man is here incarcerated for such a violent crime. He presents as an intelligent, sensible, gentle and caring person…
There is no pattern of continued or blatant disregard for the law in Anton’s case … He is described by Prison Authorities as respectful and courteous at all times, and his commitment to the Young Offenders Program is exemplary.
15. Ms Gifford concluded:
Anton has had to learn a very hard lesson – a gaol term and parole period, for agreeing to go and speak with other associates about their treatment of his friend. He knows he behaved inappropriately by remaining at the unit with his friends. A decision he most sincerely regrets and has genuine remorse for …
It is my opinion that Anton Ushakov will never reoffend. He is a young man who still has a good future ahead of him and will contribute in a positive way within his community wherever he should live.
It is hoped that the Minister will look favourably into the consideration of cancelling Anton Ushakov’s student visa. In any opinion, … if he is continue participating in his life plans, it would be best if he could complete his studies here in Australia.
Galina Ushakova
16. Mrs Ushakova is Mr Ushakov’s mother. She provided a statement in January 2003 (G Annexure J). Mrs Ushakova said her son told her what happened – that there was a conflict arising out of nationality differences. He told her that he tried to prevent the fight from happening and took no part in the attack. He told her about the violence and how he had covered his head with his hands to try and protect himself. He said he did not anticipate that there would be a fight. He thought the meeting was just to discuss the situation.
17. Mrs Ushakova said whatever the outcome of this matter, she will continue to support her son. He is a diligent and honest person and attentive, kind and tender. He deserves a better future.
Elvira Kim
18. Ms Kim swore an affidavit on 11 October 2002 in relation to the District Court proceedings (G Annexure K). Ms Kim has been a student in Sydney since September 1999. She said she and Mr Ushakov have been friends since the age of about 13 or 14. She was formerly in a relationship with Mr Ushakov but this ended while he was in Oberon Correctional Centre. They remain friends.
19. Ms Kim said Alex Aizelman used to live with “another guy” in the flat next door to her. She was aware that Alex had problems and that Mr Ushakov used to support him. Ms Kim stated that she was shocked when she heard the allegations against Mr Ushakov:
He never would hurt anyone. He is very calm and doesn’t get angry easily. I have never seen him solve a problem with physical contact.
20. She stated he is sorry for what happened and regrets what he did. When Ms Kim picked him up from the gaol after he was bailed, he had stitches in his head and bandages.
Other Statements
21. The Applicant also asked the Tribunal to take into evidence two other statements, the contents of which were uncontested by the Respondent. Colin Heley, an older friend to whom Mr Ushakov turned for advice, provided a statement dated 3 January 2003 (G Annexure N). Mr Heley said what happened was very out of character for Mr Ushakov and he has shown only remorse ever since. Mr Heley hoped Mr Ushakov would be able to stay in Australia and complete his studies.
22. The second statement, from Peter Seo, is undated (G Annexure R). Mr Seo, also an older friend and adviser at the church attended by Mr Ushakov and Ms Kim in Sydney, described Mr Ushakov as an “honest teenager with great humility”. He hoped the incident would “not leave a deep scar in his life”.
Submissions
Applicant
23. Mr Poynder, for the Applicant, said the evidence supports a finding that Mr Ushakov’s involvement in the events on 15 December 2001 should be categorised as falling within the fourth category of conduct described by the Hight Court in McAuliffe and McAuliffe v R (1995) 79 A Crim R 229 at 235 to 236 – that of a secondary offender who embarks upon a joint criminal enterprise and foresees, but does not agree either expressly or impliedly, to the further criminal conduct. When Mr Ushakov agreed to accompany his friend to Dziev’s place, he may have foreseen the possibility of violence, even though he did not consent to be involved in such violence.
24. Mr Poynder noted that there are aspects of the Judge’s summing up which are inconsistent with Mr Ushakov’s evidence: that he was not in the bathroom when Dziev was stabbed because he remained in the living room trying to break up the fight, and that he denies assaulting anyone that night. While Mr Poynder acknowledged that the Tribunal cannot go behind Mr Ushakov’s conviction or sentence, he submitted that in accordance with the views expressed by Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] 106 FCR 313 at paragraphs 41 - 45, it can make its own assessment of the entirety of the person’s conduct. In Mr Ushakov’s case, there are subsidiary facts that throw considerable light on his lesser role in the enterprise. Mr Poynder contended that the evidence indicates Mr Ushakov’s involvement was passive – that he tried to stop the violence and did not instigate it nor participate in it.
25. Mr Poynder conceded that Mr Ushakov does not pass the character test by reason of his criminal record. He also acknowledged that, in relation to the exercise of the s 501(2) discretion and the guidance provided by Direction No 21, Mr Ushakov’s conduct would fall within the “very serious” category of offences. However, he submitted that there are significant mitigating circumstances: his lesser role in the incident, his genuine remorse, and his otherwise good background, all of which was recognised by the Judge. Mr Poynder noted the Judge’s comment in summing up that Mr Ushakov is unlikely to offend again, which is supported by the psychological report.
26. Mr Poynder submitted that the Australian community would expect the Act to be administered “fairly and humanely” (ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 2.12), weighing the punitive aspects of the s 501 power against other relevant circumstances. The relevant considerations here are Mr Ushakov’s wish to continue his studies in Australia and strong evidence of his rehabilitation.
Respondent
27. Mr Grimm, for the Respondent, submitted that, in accordance with the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244, the Tribunal must accept the essential facts upon which the conviction and sentence are based. Mr Grimm sought to distinguish the decision in Ali (supra) because this concerned the review of a deportation order. He noted the further discussion of Ali (supra) in Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456, indicating that the decision in SRT (supra) is still regarded as good law.
28. Thus, Mr Grimm submitted that contrary to the Applicant’s contentions, the Tribunal must accept the essential facts found by the sentencing judge including that Mr Ushakov “hit and punched” one of the victims and at no time did he seek to get the protagonist (Petrenko) to stop what he was doing.
29. More specifically with regard to the exercise of the s 501(2) discretion and the guidance provided by Direction No 21, Mr Grimm noted that the Applicant concedes that Mr Ushakov committed a very serious offence. It is the expectation of the Australian community that non-citizens, especially students such as Mr Ushakov who are deriving a benefit from their stay, will adhere to Australian law and not be involved in crimes of violence. Mr Grimm contended that the cancellation of Mr Ushakov’s visa would not cause significant hardship given the unqualified support of his mother and the fact that he should have no difficulty resettling in Russia. Thus, the primary considerations outweigh any hardship to Mr Ushakov and the discretion in s 501(2) should not be exercised in his favour.
Consideration of the Law and Findings
30. As stated above, there is no dispute that Mr Ushakov does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. The Tribunal notes that Mr Ushakov was convicted on 11 October 2002 of three offences for which he received a term of imprisonment longer than 12 months.
31. The issue for the Tribunal therefore is whether to exercise the discretion in s 501(2) to cancel Mr Ushakov’s visa. In so doing, the Tribunal will have regard to Direction No 21 as a guide to the exercise of its discretion.
32. 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
33. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (f) “assault or any other form of violence against persons” and in subparagraph (n) “any other crimes involving violence or the threat of violence”.
34. 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.
35. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that Mr Ushakov was convicted of the offence of malicious wounding and two counts of the offence of assault occasioning actual bodily harm. The Applicant concedes that his conduct falls within the category of “very serious” offences as defined in subparagraph 2.6(f) referred to above. However, Mr Poynder contended that there are mitigating factors which should be taken into account.
36. The Tribunal recognises, as stated by the Full Federal Court in SRT (supra), that it may not engage in an inquiry which would impugn the sentence imposed upon Mr Ushakov by Acting Judge Nash of the District Court – and that the essential facts found by the Judge in the course of his deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. Mr Ushakov pleaded guilty on the advice of his solicitor to three offences: that with Dimitri Petrenko and Maxim Kvon, he (1) maliciously wounded Sozlan Dziov, (2) assaulted Alexandr Chevtchenko, thereby occasioning him actual bodily harm, and (3) assaulted Igor Veniuhin, thereby occasioning him actual bodily harm.
37. Judge Nash found that all three were involved in a “joint illegal enterprise” (G Annexure B p2). He found that Kvon, Ushakov and Azeilman “hit and punched Dziov” in the bathroom where he was naked having just got out of the shower (Ibid p5). He also found that “none of them desisted or attempted to get Petrenko to stop what he was doing” (Ibid p9). He found that “Dziov hit Ushakov on the head with a metal extension pipe or handle from a vacuum cleaner” (Ibid p7) for which he received treatment at the Prince of Wales Hospital.
38. There are no other specific references to Mr Ushakov relating to the assault or violence although it seems to be implied from the Judge’s description of the events that Mr Ushakov was involved with the others in the incidents over a period of three hours.
39. Mr Ushakov’s evidence is that part of this time was spent talking and that Mr Aizelman was asking that the verbal abuse directed at him should stop and that he should be left alone. Mr Ushakov denies that he hit and punched Dziov. He says he was not in the bathroom at that time. Rather, he stayed in the living room trying to break up the fight. He denies participating in the violence or assaulting anybody. But he was himself injured for which he received treatment at the Prince of Wales Hospital.
40. Pursuant to the decision in SRT (supra), the Tribunal makes no finding with regard to the essential facts. It merely notes Mr Ushakov’s account, set out above, differs in some particulars from those found by the Judge.
41. Paragraph 2.10 of Direction No 21 refers the decision-maker to the likelihood that the conduct may be repeated. Judge Nash said of Kvon and Ushakov (G Annexure B pp13-14):
Matters to be taken into account in mitigation are the pleas of guilty to which I have already referred, your remorse, and your good character, that you are not of a violent nature – the offences were out of your usual character, and that you are young men being sentenced for the first, and hopefully, last time.
I am satisfied that, especially Kvon and Ushakov are unlikely to offend again …
The Judge went on to recommend that they be classified to serve their sentences in a minimum security prison.
42. The Tribunal notes that the Psychological Report, by two psychologists, on Mr Ushakov, dated 10 January 2003 (G Annexure S), records that Mr Ushakov’s institutional misconduct history is restricted to the sole charge of “damage/destroy property” for which he received a reprimand and caution. No further details are recorded. The Case File Notes on Mr Ushakov from the Young Offenders Program at Oberon Correctional Centre describe him as:
Quietly compliant – has real goals and knows how to achieve them. Has a good attitude and contributed well to all activities … Leadership (potential). Motivated. Did well – involved and mature performance.
In addition, a “good work ethic” was noted.
43. With regard to his attitude to the offence, the Report records:
Mr Ushakov does accept responsibility for his antisocial behaviour and expresses a substantial regret and remorse.
44. The Report records the outcome of a psychological test administered to Mr Ushakov in assessing the risk of his reoffending:
On the basis of this instrument, Mr Ushakov presents an overall low risk of reoffending.
The Report concluded that Mr Ushakov exhibited “contriteness in respect to his conviction” and that “he is assessed at an overall low risk of re-offending”.
45. A report to the Welfare Officer at Oberon Correctional Centre dated 10 January 2003 on Mr Ushakov’s participation in the Personal Development component of the Young Offenders Program (G Annexure T) stated:
He has consistently displayed high levels of self-responsibility and motivation, and appears genuine in his goals of personal development.
46. A Case Officer’s Report on Mr Ushakov from the Oberon Correctional Centre dated 28 December 2002 (G Annexure U) makes the following comment:
Anton has applied himself very well to the programme and seems to be readily accepted in the unit. Also he appears to have no problems with any of the officers. If he can maintain this related living style he should not have any more problems outside.
47. The Welfare Officer at Oberon Correctional Centre, Ms Gifford, stated (G Annexure G): “It is my opinion that Anton Ushakov will never reoffend”.
48. On the basis of the above evidence and having also heard character evidence as to Mr Ushakov from his mother and former long time girlfriend, Ms Kim, the Tribunal concludes that the risk of Mr Ushakov reoffending is extremely low.
49. With regard to deterrence, the Tribunal recognises that deterring others from similar misconduct is an important consideration. However, this is something Judge Nash took into account in imposing a custodial sentence on Mr Ushakov (G Annexure B p13) and, given that Mr Ushakov has already served that sentence, the Tribunal does not now consider deterrence to be a conclusive factor.
50. Turning to the second of the primary considerations, it is the expectation of the Australian community that overseas students studying in Australia on student visas should adhere to Australian law while in Australia and, in particular, should not be involved in crimes of violence. However, the community also expects that the Act should be administered “fairly and humanely” (Re Leha (supra)) having regard to the particular circumstances. The Tribunal accepts that Mr Ushakov is keen to continue his tertiary studies in Australia. Given the evidence of his rehabilitation, recent good conduct, and other references to his good character, it is the Tribunal’s view that the Australian community would permit Mr Ushakov to continue his studies in Australia and would not expect that his visa would be cancelled.
51. The third primary consideration, the Best Interests of the Child, is not relevant to this matter.
52. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
53. Most of the relevant considerations have already been canvassed. Mr Ushakov’s family are in Yuzhno–Sakhalinski in Russia. He is supported by his parents in Australia and will presumably return to his home city at the conclusion of his studies in Australia. All the evidence suggests that Mr Ushakov is an intelligent and motivated student who has considerable potential. For example, the Welfare Officer at Oberon Correctional Centre, Ms Gifford, described him as “an intelligent, sensible, gentle and caring person”. His conduct in the Young Offenders Program was “exemplary”. She said he “had to learn a very hard lesson” for behaviour that “he most sincerely regrets and has genuine remorse for” (G Annexure G).
54. The other reports from Oberon Correctional Centre referred to above also attest to Mr Ushakov’s regret and remorse and to his rehabilitation. In his statement (A1), Mr Ushakov emphasised his regret and remorse (at paragraph 61):
I am truly sorry for the misgivings I have placed upon the victims and all those who have supported me throughout my attempts at furthering my education in Australia.
55. Weighing up the primary and other considerations, in the Tribunal’s opinion Mr Ushakov is of no risk to the Australian community and, for the reasons set out above, the community would expect that he be permitted to continue his studies in Australia and would not expect that his visa would be cancelled. The other considerations also support this conclusion.
56. Thus, in the Tribunal’s opinion, this is an appropriate case in which the discretion in s 501(2) should not be exercised so that his visa is not cancelled, notwithstanding that he does not pass the character test.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 30 July 2003
Date of Decision 7 August 2003
Representative for the Applicant Mr N Poynder, Counsel
Representative for the Respondent Mr A Grimm, Solicitor
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