VWLL and Minister for Immigration and Citizenship
[2012] AATA 858
•13 November 2012
[2012] AATA 858
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3972
Re
VWLL
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 13 November 2012 Place Melbourne Decision The decision under review is set aside and in substitution it is decided the visa held by the applicant should not be cancelled.
(sgd) John Handley
Senior Member
MIGRATION – Review of decision to cancel applicant’s visa – failure to pass character test – applicant pleaded guilty to possession of pre-curser chemicals used in manufacture of methamphetamine – other adverse conduct volunteered – applicant now 47 – present in Australia for 30 years before convicted – Ministerial Direction No. 55 – criminal conduct viewed very seriously – remaining primary and other considerations viewed very favourably – applicant not an unacceptable risk to the Australian community – decision set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 35
Migration Act 1958 ss 499, 501
CASES
R v Gates [2005] VSCA 61
Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68
Milne v Minister for Immigration and Citizenship [2010] FCA 495Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
REASONS FOR DECISION
Mr John Handley, Senior Member
5 December 2012
At the commencement of the hearing I acceded to a request made by the applicant for an Order pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975. The confidential nature of the evidence surrounding the circumstances of the applicant’s criminal conduct and medical information relating to some of the witnesses satisfied me that it would be desirable to make the Order. The reasons for making it will become apparent by the contents of these reasons. The Order prohibited publication of the names of the applicant, his witnesses and other persons identified in the documents lodged by the Minister for Immigration and Citizenship (the Minister). Additionally, access to the Transcript and all documents received into evidence was restricted to the parties, their representatives and staff of the Tribunal and Auscript.
At the conclusion of the hearing on 13 November 2012, I informed the parties’ representatives, orally, that I had decided set aside the decision under review and in substitution I decided that the visa issued to the applicant should not be cancelled. I also told them that I would deliver written reasons, which appear below.
THE APPLICATION
VWLL, the applicant in these proceedings sought review of a decision made by a delegate of the Minister on 31 August 2012 to cancel his visa pursuant to s 501(2) of the Migration Act1958 (the Act).
The applicant is a citizen of New Zealand who first arrived in Australia on 27 June 1980 when he was 17 years of age. He is now 49. He has been deemed to be the holder of a Class TY Subclass 444 Special Category (Temporary) visa which has permitted him to remain indefinitely in Australia whilst he remained a New Zealand citizen.
During his residency in Australia, the applicant was a member of a de facto relationship. He has 2 daughters from that relationship who are now both adults.
The applicant was sentenced to imprisonment for a period of 9 years in the County Court at Melbourne on 12 July 2006. He pleaded guilty to one count of trafficking in a drug of dependence (in not less than a commercial quantity), one count of possessing phenylacetic acid and methylamine with the intention of using those substances for the purposes of trafficking in methamphetamine and possession of a long armed rifle without a licence. He was then 43 years of age.
The Minister’s delegate decided that the applicant did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more (ss 501(6) and (7) of the Act).
Before 1 September 2012, when exercising the discretion to cancel a visa under s 501(2) of the Act, decision-makers (including Members of the Administrative Appeals Tribunal) were required as a matter of law to have regard to Direction [no. 41] – Visa refusal and cancellation under s501 issued by the Minister under s 499 of the Act (Direction 41).
On 25 July 2012 the Minister issued a new Direction – Direction no. 55 Visa Refusal and cancellation under s501 (Direction 55) – which commenced on 1 September 2012 and revoked Direction 41.
The Minister's delegate made the decision under review in this application on 3 September 2012. He referred entirely to Direction 41 in exercising the discretion to cancel the applicant’s visa.
I am satisfied on the submissions made by both representatives at the commencement of the hearing, that I am obliged to apply Direction 55 despite it not having been considered by the delegate. I am unable to have regard to Direction 41, despite it being current at the date of the reviewable decision because it was revoked with effect from 1 September 2012.
DIRECTION 55
Direction 55 is divided into a number of sections. The first addresses preliminary matters and contains a Preamble which sets out Objectives, General Guidance and Principles. In summary, the objective of Direction 55 is to provide guidance to decision-makers when exercising powers under s 501 of the Act. In exercising their powers, decision-makers are reminded of the purpose of the Act, the nature of the discretion in s 501 and of the government’s commitment to protect the Australian community from harm by non-citizens as a result of criminal or other serious conduct and the need to maintain integrity and public confidence in the character assessment process.
Direction 41 contained objectives and a statement of general guidance. Although expressed in different language, it expressed similar intent. However, unlike Direction 41, Direction 55 contains a statement of the Principles at paragraph 6.3 which the Minister described in a press release on 5 August 2012 as a framework for decision-makers to consider whether to cancel or refuse a non-citizen’s visa. The addition of the Principles is significant and should be regarded as being an expression of critical importance to the government.
The Principles may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens are of character concern and are allowed to enter or remain in Australia. Entry into and remaining in Australia is a privilege conferred on non-citizens. In return, it is expected that they will abide by Australian laws, will respect important institutions and will not cause or threaten harm to individuals or the Australia community at large. (Character Concern is found at Annex B and adopts the definition of that expression found in s 5C of the Act).
·A non-citizen, who has committed a serious crime, including a crime of a violent or sexual nature and particularly against vulnerable members of the Australian community such as minors, elderly persons or the disabled, should expect to be denied the privilege of coming into or forfeiting the privilege of remaining in Australia.
·In some circumstances, criminal conduct or offending and the harm as a consequence of it, if repeated, may be so serious that the risk of similar future conduct is unacceptable. Strong countervailing considerations may not be sufficient to prevent cancellation or refusal of a visa.
·There is a low tolerance in Australia of any criminal or other serious conduct by visa holders who have been present in Australia for a short period of time. Conversely a higher level of tolerance of criminal or other serious conduct may be afforded to visa holders who have lived in Australia for most of their life or from a very young age. (Serious conduct is defined at Annex B as behaviour or conduct of concern where a conviction may not have been recorded or where the conduct may not have constituted a criminal offence. The definition includes examples and has regard also to the type of conduct found within s 501(6)(c) and (d) of the Act).
·Australia has a low level of tolerance of visa applicants or those who have held a visa for a limited period who engage in criminal or other serious conduct and they should have no expectation that they will be allowed to come in or remain permanently in Australia.
·The length of time that a non-citizen has been making a positive contribution to the Australian community and the consequences of cancellation or refusal of visa cancellation to children, who are minors and other immediate family members in Australia, are relevant considerations.
Section 2 of Direction 55 provides guidance in exercising the discretion and compels the Tribunal to take account of the Principles in paragraph 6.3 in order to determine:
(a)having regard to the considerations in Part A, whether a non-citizen will forfeit the privilege of continuing to hold a visa; and
(b)whether the risk of future harm by a non-citizen is unacceptable. This requires undertaking a balancing exercise of the likelihood of future harm, the extent of potential harm and the extent of whether any risk of future harm should be tolerated by the Australian community.
Paragraph 8 concerns the considerations that must be taken into account. The considerations are described as primary and other. The considerations relevant to visa holders are set out in Part A (Part B concerns visa applicants and will not be discussed below). Paragraph 8(1) provides that substantive visa holders generally expect to be permitted to remain in Australia for the duration of their visa. (A substantive visa is defined in Annex B and s 5 of the Act as a visa which is not a bridging visa, a criminal justice visa or an enforcement visa).
When applying the primary and other considerations, information from independent and authoritative sources is to be given appropriate weight in favour of or against visa cancellation. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
Paragraph 9 of Direction 55 identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia; and
d)Whether Australia has international non-refoulement obligations to the person.
THE APPLICANT
The applicant's parents divorced when he was aged 15 in New Zealand. His father remarried. His mother has suffered multiple sclerosis for approximately 30 years, is largely infirm and lives in a nursing home in New Zealand.
The applicant moved to Australia at the age of 17 to visit his father who was the manager of a hotel at the Melbourne airport. He has subsequently returned to New Zealand and lives approximately 60 kilometres from Auckland.
Shortly after arriving in Australia, the applicant found work as a storeman and packer where he also met his future de facto partner, LTP, who is the mother of his 2 daughters, LM and EK. The applicant also enlisted in the Army Reserve within 12 months of arriving in Australia despite being otherwise ineligible because he was not an Australian citizen. He understood that he was permitted to enlist because he intended to apply for citizenship.
Since he first arrived in Australia in 1980, the applicant has returned to New Zealand on 6 occasions. Five of those occasions have each been for a few weeks, save for a period of about 2 years between August 1990 (shortly after he was retrenched from his job as a storeman) and August 1992 when the applicant, LTP and their daughters moved to New Zealand. During that time the applicant was employed. The family returned to Australia because LTP was homesick and her mother was then seriously unwell. The applicant has remained in Australia since 1992.
After returning to Australia, the applicant found work as a doorman and as a security guard in Melbourne nightclubs. The applicant recalled that LTP wanted to marry but he was less inclined. She was also upset that he was working at night. Their relationship broke down and they separated. Their daughters were then aged 5 and 8. The applicant then lived with his sister, MD and her husband who leased a service station in suburban Melbourne and who also employed him. The applicant was not restricted by LTP in his access to the girls and he acknowledged that she did not impose any restrictions on him taking the girls away on weekends and during holidays.
The applicant was employed by his sister and brother-in-law for about 2 years. MD also assisted him to find private accommodation. The applicant missed having daily contact with his daughters and said that he would see them at every opportunity. Whenever possible, he would collect them after school, he attended school events, including parent teacher interviews and drove them to and watched them participate in sporting events which he encouraged.
The applicant said he first used cannabis when he was about 15 or 16 years old. In Australia, he said he used it regularly and on reflection, he thought that his consumption of it increased after he separated and he probably used it as a form of self-medication. He and LTP attempted reconciliation on a few occasions but she married about 2 years after their separation. The applicant continued to enjoy relatively unrestricted access to his daughters, despite them living with their mother and her husband. On occasions, he would stay at their house and had access to it in their absence. Later, tension emerged between him and LTP's husband.
Whilst employed in nightclubs, the applicant met a person, X, and a friendship developed. X owned property and a house under construction in country Victoria which was offered to the applicant. The applicant completed work on the house in exchange for non-payment of rent. The location of the property was very isolated, the applicant did not initially have a car and in order to travel to Melbourne to see his daughters, he walked to a small town where he would travel by bus to a major country town and then travel to Melbourne by train.
At about this time, the applicant was diagnosed with social phobia which was treated by a doctor in Melbourne. Zoloft and Ducene medication was prescribed which the applicant consumed thereafter for many years whilst he also remained under specialist care. He qualified for and was paid sickness allowance by Centrelink. The applicant described his symptoms as severe stress as a reaction to coping with new situations. With the exception of his daughters, he withdrew from friends and family members. He saw his daughters every 2 weeks, shortly after he received his fortnightly Centrelink payment. On occasions, he would hire a motor car and stay in Melbourne at a motel with them and described having a lot of fun. The applicant said he would then struggle for the next 2 weeks until he again saw his daughters.
The applicant said that Centrelink payments were spent almost entirely on travel and other costs associated with visiting his children. Between visits, he lived on noodles. X was aware of his financial situation and introduced him to a person, Z, who offered the applicant work as a delivery driver. The applicant said that the prospect of work and earning money appealed to him and the amounts offered as a driver were, in his circumstances, very appealing. The person Z was introduced by an apparent nickname only. The applicant only met Z on one occasion and never knew his real name.
The applicant said that on the occasions when he would be expected to undertake a delivery, he would receive a telephone call and the caller would not identify him/herself. He would hear the sound of a set of keys being rattled and he would know that he was being contacted to arrange a delivery. He knew to attend a public telephone box and collect a note which would instruct him to drive to a car park where he would be expected to leave his car unattended with the boot unlocked. He would return to the car about half an hour later. In the interim, packages or containers of items would have been stored in the boot with an address for delivery. He would then drive his vehicle to that address and depart again with the boot unlocked. He would return later and be aware that the items that were in the boot had been removed. The applicant does not know whether Z is alive and if he is where he lives or his true identity.
The applicant said he made 6 or 7 deliveries over a 3 or 4 year period. On the first occasion he was paid $1000 in cash. Thereafter, he was paid $5000 for each of 3 or 4 deliveries and $10,000 for each of another 3 or 4 deliveries. On average, the deliveries occurred about every 8 or 9 months, however, there were occasions when some deliveries were undertaken more than 12 months apart. The payments were made by leaving the money in the boot of the car. The applicant knew that the items he collected and delivered were for illegal purposes. He said he knew that it was wrong to have become involved in that activity and he was not proud of it.
After he received his first payment of $5000, the applicant said he took his daughters on a holiday to the Gold Coast for one week where they visited theme parks and he said they had a great time. About $2000 was used to purchase a motor car.
X owned other property in rural Victoria. The applicant moved to live on that property in a caravan that he owned and which was parked close to another caravan that was owned by X.
Through his friendship with X, the applicant met Y. Both X and Y were executed in Melbourne in 2003. The applicant learnt at that time that they were both involved in the drug industry and were persons of interest to members of the Victoria Police Purana task force which was assembled to investigate gangland activity.
In early 2004, a short time after the death of X, the applicant came to the notice of Victoria Police who had been observing him and his caravan on the property that had been owned by X. Police entered the caravan owned by the applicant, whilst he was absent, pursuant to a warrant.
Police located 2 containers of phenyl-2-propanone, being 12.8 kg in weight and 4 x 500ml containers of phenylacetic acid (the chemicals). A summary of evidence prepared by the Director of Public Prosecutions (Exhibit R2, page 14) records that these chemicals are used in the manufacture of methamphetamine. In the other caravan, which the applicant said had been used by X as a workshop, police located a disassembled air rifle of 3 parts.
Pursuant to the Drugs, Poisons and Controlled Substances Act1981(Vic), the applicant was charged with one count of trafficking in a drug of dependence in not less than a commercial quantity and one count of possession with intent to use the chemicals for the purposes of trafficking in methamphetamine. He was also charged with possession of a long armed rifle without a licence.
The applicant said when he learnt that X and Y had been killed, he was horrified and surprised. He also said he was scared because he had been left with the chemicals which the police had located during the execution of the warrant. The applicant said he had retained the chemicals because he did not know what to do with them. He said he wanted to dispose them but did not in case he got a phone call.
The police also located in the applicant's caravan a receipt dated 12 December 2002, in his name, issued by B.O.C. Ltd for the purchase of 22.7 litres of liquefied ammonia anhydrous which is a precursor chemical for the manufacture of methamphetamine. The applicant said he was given cash to purchase it and an additional $1000 in cash as his payment. His instructions to purchase the product were contained in a note, placed in the boot of his car on one of his deliveries, together with money for the cost of the purchase and his fee. A written quotation issued by TW Welding made out to X for the manufacture of 2, 5 and 10 litre stainless steel pots was also located in the applicant's caravan. A statement from the Office of Public Prosecutions recorded that those pots were consistent with those used in the manufacture of methamphetamine (Exhibit R2, page 14).
A number of books were located in the applicant's caravan that he agreed he had purchased and were entitled, Fingertip Firepower, Pen guns, Knives and Bombs; Guns and Homemade Guns and Ammo.
During the hearing of this review, the applicant volunteered his involvement in the delivery of packages and containers. He was never charged with offences relating to that activity. He could not explain why he kept the invoice from B.O.C. Ltd. He agreed he was not a sophisticated criminal and said that he did not claim to be the brains. He was unable to explain why the invoice from TW Welding in the name of X was in his caravan. He said he purchased the books, by mail order, because he had a fascination with guns. He said he had never used a gun other than during his service with the Army Reserve. The parts of the air rifle belonged to X and were located in the toolbox in his caravan. The applicant was aware of those parts and said that he never saw any need to reconstruct the rifle.
The police located a document, in the applicant’s handwriting, which stated that he and others (the names of the others was not recorded), were associated in very big and dangerous things that involved very big risks and very big money and we have all risked very long gaol time and death. The applicant admitted that document was written by him and was a note to myself. He said he could not recall writing it and had no idea why he did. He said he was then paranoid and he thought he was unstable.
Also located in his caravan were his passport, birth certificate, driver’s licence, a bank book and significantly, in my view, numerous photographs of the applicant and his daughters.
A Summary of the Prosecution Opening dated 25 July 2005 records that the Crown alleged that the applicant had been storing a pill press at the home occupied by LTP and he had offered it as security for a debt that he owed to a car hire company (Exhibit R2, page 21 at [14 – 15]). In his Defence Response, the applicant denied those allegations (Exhibit R2, page 23 ‑ 24 at [7 – 8]). He was never charged with possession of a pill press.
The applicant said he participated in a no comment interview with police. He deliberately declined to give any explanation or assist the police in their enquiries, despite being offered a number of incentives.
In this review, he said he did not know who had been involved in supplying to or receiving from him the items that he transported and he was scared for his family. He was aware that other persons had been shot and killed in Melbourne at around this time and said that it was better to say nothing and plead guilty. He understood that police informers had also been shot and killed. He preferred to remain silent and thought that assisting the police would expose him to risk. For the reasons given above, he declined to explain that the parts of the rifle that were confiscated had been owned by X. He said the rifle had been assembled by the police. The Prosecutors Opening Summary confirms that an air rifle in 3 parts…and a metal trigger were found when the caravan was entered (Exhibit R2, page 14 at [6]).
The applicant was initially refused bail and was remanded at Port Phillip prison. It was intended that he would be put into a protection unit but he declined, he said, because it didn't sound too good and he thought he would be unsafe and he refused to be transferred into a protection unit (refer letter from Department of Justice – Exhibit R2, page 3). He was admitted to the Charlotte unit which involved him being locked down in a cell, alone, for 23 hours each day. He was allowed to exercise for one hour each day, outside his cell, in a small caged area where he did not associate with other persons. The applicant was remanded in Charlotte for 257 days before bail was granted.
Bail was granted on the basis of a $50,000 surety that was provided by the applicant’s sister, MD, who offered the equity in her home which she owned jointly with her husband.
Whilst on bail, the applicant obtained employment and worked on the construction site of the swimming pool for the Commonwealth games in 2006.
On 12 July 2006 the applicant was before the County Court in Melbourne where he was sentenced to cumulative term of 9 years imprisonment. The period of detention at Port Phillip prison whilst on remand was reckoned as time served and Judge Ross decided that the applicant would be eligible for parole after serving 7 years. The applicant completed his sentence on 21 October 2012 and was subsequently detained at the Maribyrnong Immigration Detention Centre.
PRIMARY CONSIDERATIONS
9.1 Protection of the Australian Community
The first primary consideration within Part A is the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1 records some of the principles found within the Preamble of Direction 55, namely, the commitment of the government to protect the Australian community from harm as a consequence of criminal activity or other serious conduct (at [6.2]). Additionally, persons in Australia holding a visa do so by way of privilege and with the expectation that they will be law-abiding, will respect important institutions and will not cause or threaten harm (at [6.3]).
There are 2 issues to which decision-makers should give consideration, namely:
a)The nature and seriousness of the person's conduct to date; and
b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
Paragraph 9.1.1(1) provides that when considering the nature and seriousness of a person's criminal offending or other conduct, regard must be given to a number of factors. Relevantly, sub-paragraph a) provides, as a principle, that the range of offences that may be considered as serious should not be limited. Violent and/or sexual crimes are to be viewed very seriously. Sub-paragraph b) provides, as a principle, that crimes committed against vulnerable members of the community (the examples given are minors, the elderly and the disabled) or government representatives or officials are serious.
I am satisfied that the offences for which the applicant was convicted and to which he pleaded guilty should be regarded as falling within the range of offences that are considered to be serious.
At the outset, it should be recorded that the applicant pleaded guilty to 3 charges and was convicted and sentenced. Despite his explanation with respect to the air rifle, I am obliged to have regard to the conviction for possession of a rifle without a licence.
There can be no doubt that possession and trafficking of precursor chemicals are serious offences and the harm to the community when the final product is available and distributed cannot be ignored. The sentences with respect to those offences, being 9 years and 2 years respectively, reflect the abhorrence of the community to persons who commit such offences and the harm that can be caused to others. That the maximum penalty for those offences is 25 years imprisonment reinforces the seriousness of the offences. A penalty of that magnitude is an attempt by the legislature to deter persons from committing offences involving the trafficking or the potential trafficking in a drug of dependence.
In his sentencing remarks, Judge Ross followed a decision in R v Gates [2005] VSCA 61 where the Court of Appeal decided that those who are charged under the deeming provisions with trafficking, when found in possession of precursor chemicals, as opposed to the finished product, are entitled only a modest amelioration in sentence. Judge Ross also stated that the sentence should reflect the fact that traffickers in commercial quantities of methylamphetamine seek even greater profits than those dealing in the precursor (Exhibit R1, page 68 at [5]).
In exercising his discretion with respect to the period of sentence, Judge Ross recorded, when addressing the applicant, that he was satisfied:
…[t]he Crown case against you strongly support[s] the inference that you were substantially involved in the trafficking of these chemicals, had an awareness of their destination and that you were so involved in the expectation of substantial financial reward (Exhibit R1, page 69 at [8]).
I agree with those remarks. Whilst the applicant had a peripheral involvement in the manufacture of methamphetamine, he did accept an offer to engage in an activity which he knew was serious and in return, despite minimal effort, received considerable financial rewards.
The protection of the Australian community is not confined to protection only from criminal conduct. It is also concerned with other serious conduct (at 6.3(4)).
During the hearing of this review it was learnt that the applicant was involved in the collection and delivery of precursor chemicals over 3 or 4 years and then on 6 or 7 occasions. He was never charged in relation to that activity. There is nothing apparent from the police or Director of Public Prosecution records lodged by the respondent which would indicate that relevant authorities were aware of that activity. That conduct was volunteered by the applicant during the course of this review. It does constitute other serious conduct.
The gravity and extent of the applicant’s conduct, both in relation to the charges of possessing the precursor chemicals, for which he was charged and convicted and his other conduct in relation to collection and delivery of the precursor chemicals, causes me to find that considerable weight should be levied against him in the discretion I am compelled to exercise. His conduct in my view should be considered very seriously and favours the cancellation of his visa (at 9.1.1(1)(a)).
The applicant had been charged with 3 previous offences, twice in 1986 and once in 1997. On the first occasion, he was convicted of being in possession of a drug of dependence and possession of a restricted substance. The proceedings were adjourned upon the applicant entering into a reconnaissance to be of good behaviour for 12 months. The applicant explained that he was then engaged in bodybuilding and was found to have been in possession of steroids without a prescription.
In 1986 the applicant was also charged with 2 counts of unlawful assault. He explained that he was then drunk and was involved in a fight at a workmate’s house. He was convicted and was released on entering into a reconnaissance to be of good behaviour for 12 months.
In October 1997 he was charged with wilful damage which the applicant explained arose out of him causing panel damage to a motor car which he kicked when it was driving towards him. He was released without conviction and was fined $150.
Judge Ross was aware of those 3 prior offences and decided that they had no great significance in (the) sentencing exercise (Exhibit R1, page 67 at [2]). I am also satisfied that those prior offences have no impact on the weight that should be attached to the serious nature of the offences which has attracted the interest of the Minister. I note that the applicant last offended in 1997 and the Magistrate was satisfied that he should be released without conviction. The other two offences occurred in 1986, being 20 years before his appearance in the County Court. The applicant should not be regarded as having been engaged in repeated offending (at 9.1.1(1)(g)). He was not warned, before his arrest, that the consequences of offending put his migration status at risk.
The applicant obviously abused the privilege given to him as the holder of a visa which gave him permission to reside in Australia. I note the Court of Appeal in Gates decided that only a modest amelioration in penalty is available to persons charged with possession of precursor chemicals (as opposed to active involvement in the manufacture of methamphetamine). In my view, only a modest amelioration should be extended to the applicant in the extent of weight that should be levied against him. Equally, similar consideration should be given to the applicant for him having volunteered the information concerning his collection and delivery of precursor chemicals during this hearing. That it was not known to the police or other relevant authorities previously is consistent with the applicant’s evidence that he chose to offer a no comment interview and remain silent about him being in possession of chemicals, largely in fear of reprisal if he were to give information that may permit identification of other relevant persons.
In considering the protection of the Australian community, I am compelled to assess the extent of the risk and nature of the harm that the Australian community will be exposed to if the applicant commits further offences or engages in serious conduct (at 9.1.2). For reasons which follow, I am satisfied that the scales tip considerably in favour of the applicant. At this part, I am required to consider whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In making that finding, I am obliged to have regard to a principal that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Having observed the applicant at the hearing and after consideration of his evidence and the evidence of his witnesses and having also read the documents exhibited in evidence, I am satisfied that it is highly unlikely that the applicant will reoffend.
The applicant had been resident in Australia for approximately 22 years before he committed the offences to which he was convicted and ultimately sentenced. The other activity undertaken by the applicant collecting and delivering precursor chemicals occurred between approximately 20 and 22 years after he arrived in Australia. The applicant was close to 40 years of age when these offences occurred. Apart from the appearances before Magistrates Courts in Melbourne, the applicant had not previously offended in Australia. The applicant did not offend whilst he lived in New Zealand.
From the evidence heard and read in this review, it appears that the applicant suffered considerable emotional distress and depression following the ending of his 10 year relationship with LTP. Compounding his distress was his dislocation from his daughters with whom, on the basis of the evidence heard from him and them, he had a very close and loving relationship. Prior to the ending of his relationship, the applicant had been engaged in full-time secure employment which ended when he was retrenched. He and LTP decided to move to New Zealand where they resided for about 2 years. Upon their return, the applicant found it difficult to find full-time employment. He did obtain casual work at night as a nightclub bouncer but his disinclination to marry LTP, despite her overtures, caused instability in their relationship.
The applicant was devastated when he separated from LTP and his daughters. He increased his consumption of marijuana which he said was a form of self-medication against the depression that he then suffered. By his association with X, he obtained accommodation in a remote part of rural Victoria. The isolation exacerbated his depression. He was formally diagnosed with stress and depression and was prescribed medication.
The applicant was virtually impecunious because almost all of his fortnightly Centrelink payment was spent on travel costs to Melbourne to visit his daughters. The lure of earning money from a person to whom he was introduced by X created the opportunity to maintain himself and to take his children on a holiday, which he did, thereby giving him the opportunity to spend extended time with them.
The applicant said in evidence that he knew that his criminal behaviour was wrong and he was not proud of it. In his statement (Exhibit A1), the applicant said:
15.This was a terrible time for me, and I started to suffer severe bouts of depression and anxiety. I developed a social phobia. This led to a downward spiral with the rest of my situation, and I became unemployed with no money or a stable home.
16.I was very withdrawn and socially isolated. I felt like a social outcast during this time, and not being able to be there and provide for my daughters was a large contributor for this.
17.My life spiralled out of control. I was embarrassed, ashamed and it took me a while to seek the help I needed. This was a miserable time in my life and there seemed no way out.
18.I got involved in the chemical industry out of weakness, desperation, stupidity and greed. I did not consider the consequences of the choices I made on myself, my family and the community.
19.I was only involved in one part of the process, however I fully repent for my actions. I was not in contact with my other family in Australia during this time (although I always saw the girls as much as possible), as I was so involved in my bad choices.
I am satisfied that the applicant engaged in criminal activities almost entirely as a consequence of his personal circumstances, being the separation from LTP and his daughters, his association with X and to a lesser extent Y, his reaction to learning of them being killed (and the manner in which they were killed), his strained financial circumstances and the apparent mental illness that he was then suffering.
Dr Jeffrey Cummins, a consulting clinical and forensic psychologist, interviewed the applicant shortly before he was sentenced. In a report dated 28 June 2006 (Exhibit R2, page 5-9), he recorded a history that the applicant was very depressed and engaged in some suicidal ideation following separation from LTP. It was Dr Cummins’ opinion that the applicant had developed a paranoid personality style, partly related to his chronic daily use of cannabis and it was also thought that the applicant had a borderline personality disorder.
The report clearly indicates that the opinions expressed above by Dr Cummins were based on the history he obtained from the applicant after his separation and at or about the time that he was offending. I am therefore, satisfied that the history obtained by Dr Cummins is consistent with and corroborates the evidence of the applicant with respect to his behaviour and conduct and which is likely to have explained his offending.
The applicant retained possession of the precursor chemicals despite having had plenty of opportunity to dispose them. He said he feared that disposal would have put him at risk from unknown persons. That he failed to dispose the receipt from B.O.C. Ltd for his purchase of ammonia anhydrous, which was in his name, points to a person who is not a sophisticated criminal. He was certainly not the mastermind. His acquisition and retention of the books and the note that he wrote to himself is consistent also with the diagnosis of Dr Cummins, namely, that the applicant was paranoid. The applicant said he was unstable.
The applicant said in evidence that his time on remand and during his 7 years of incarceration at Loddon and Margoneet prisons have, in combination, been a turning point.
During that time he has not been available to his children, and but for their weekend visits, he has largely been denied the opportunity to watch them grow and develop. His interaction with his children has been minimal. He has acknowledged that his daughters have suffered by his absence and incarceration and they have suffered emotional illnesses for which they have been treated. The applicant has pledged to them that he will not reoffend, he has told them of his shame and upon release from prison, he has told them that he is not prepared to jeopardise his future relationship with them.
The applicant has reflected on his criminal activity and has acknowledged his wrongdoing. He has used his period of incarceration to reflect on his behaviour and to become resolute that he will not reoffend. He completed a cognitive skills program over a 4-month period in Loddon, which he said was beneficial. He also completed other training programs at Margoneet. He did not take drugs despite them being, he said, readily available.
A report from a senior prison officer described his behaviour during his incarceration at Margoneet as exemplary (Exhibit A12). During his incarceration the applicant did not produce a positive urine sample. He did not offend, save for some tattoo equipment found in his cell in 2007. His age, apparent maturity and remorse was exploited by prison authorities who asked the applicant to be a mentor to younger prisoners and counsel them about the evil of drug abuse. He became very health conscious, he ceased cigarette smoking and achieved a high level of fitness. He was found to be polite and courteous. He has also been engaged as a recreational officer. The prison officer is also aware that the applicant has enjoyed the support of his family which was regarded as being very important to the rehabilitation of (the applicant). The officer concluded his report that he has been engaged in prison service for 12 years, that he is not in the habit of providing referrals for prisoners but in this case I am confident that (the applicant) has indeed been rehabilitated and will be a respectful member of the community should he be granted stay (sic) in Australia.
The applicant has been offered full-time employment by 2 persons. If released he will be subject to a period of parole of about 2 years. He is aware of the consequences of offending whilst on parole. He is also aware that the consequences of offending in the future will more than likely cause another application to be made to cancel his visa. Should that occur, he acknowledged that it would be pointless to oppose that application. The applicant said he is not a threat to the Australian community which he acknowledges frowns on his past behaviour. He said that he will never offend again.
I acknowledge that trafficking in drugs of dependence has devastating consequences on individuals, their families and the community at large. The harm to the Australian community of such activity is serious. I acknowledge also that without the trafficking of the precursor chemicals, the manufacturing and trafficking of the final product would not be possible (Gates at [18]). However, I am satisfied for all the above reasons, that the applicant does not represent an unacceptable risk of harm to the Australian community.
9.2 The strength, duration and nature of the person’s ties to Australia
Paragraph 9.2 of Direction 55 provides that this primary consideration reflects the principles at 6.3 (refer to paragraph 14) and decision-makers must have regard to the following criteria:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
c)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia at the age of 17 in 1980. He was before a Magistrates Court in 1986 on 2 occasions and again before a Magistrate in 1997. Those appearances were not regarded by Judge Ross as being of any great significance when he imposed the sentence on the applicant. That sentence arose out of offences committed 20-22 years after arriving in Australia and which gave rise to the decision of the Minister under review in this application. The applicant was charged with those offences in 2004 being 24 years after he arrived and when he was then aged 39. He was sentenced in 2006 when he was 41 years.
Some weight should be found in favour of the applicant having regard to the period of time that he spent in Australia before he engaged in the conduct which gave rise to the offences which caused him to be sentenced.
After arriving in Australia, the applicant obtained work as a storeman and forklift driver with a pharmaceutical company. He then met his future de facto partner, LTP, who also worked with the same employer. The applicant was a member of the Australian Army Reserve for 3 years shortly after he arrived in Australia.
Following his separation, the applicant was employed by his sister MD for about 2 years between 1994 and 1996 at a garage and service station that she and her former husband operated.
After he was released on bail and before he was sentenced, the applicant was employed at the construction site of the Olympic swimming pool in Melbourne. That employment was obtained for him by representations made by his friend BB, who is an official with the Victorian branch of a trade union. BB did not give evidence (because he was committed to a union meeting interstate on the days that this application was heard). However, in a statement received as Exhibit A13, he confirmed having known the applicant for 29 years and was aware that the former employer of the applicant had undertaken to re-employ him upon his release. He was also aware that a number of other employers were willing to employ the applicant.
The applicant's niece SLK, who is the eldest daughter of MD, is engaged to JS who is self-employed as an earthmoving and construction contractor. JS gave evidence, consistent with a statement he prepared (Exhibit A2), confirming that he had met the applicant on many occasions during prison visits. He is prepared to engage the applicant on a full-time basis and would ensure that every opportunity was given to him to obtain all relevant licences and regulatory permission to operate earthmoving machinery and equipment. He also indicated that he would give the applicant time away from work to assist and care for LTP, who is about to undergo surgical treatment. He was satisfied the applicant has a good work ethic, based on his engagement as a recreation officer at Margoneet and his knowledge that the applicant had also been engaged as a painter at Loddon.
I am satisfied on the evidence read and heard that the applicant does have a good work ethic as evidenced by his employment to date, both outside and within the prison system. I am satisfied also that by his connection with Australian citizens and the evidence in this review that the applicant will be offered employment, he will accept and undertake it willingly.
The remaining part of this primary consideration compels an examination of the connection between the applicant and Australia, having regard to the strength, duration and nature of any family, social and/or employment links with Australian citizens or permanent residents.
On the basis of the evidence heard and the witnesses observed during the hearing, I have no doubt that the applicant has a strong and committed relationship with his family. His family and friends have supported him and have done all that is possible to maintain a close and continuing relationship despite his offending. Although, this issue will be addressed more fully below, I must at this stage note that cancellation of the applicant’s visa would have a devastating and profound effect upon family members.
The strength and unity of the relationship between the applicant and his daughters, his sister, his former de facto partner and niece, as expressed by him and them was unlike evidence I have heard in any previous application reviewing a decision to cancel a person's visa. I have no doubt about the honesty of that evidence and the often raw emotion exhibited during the hearing. The applicant's brother PD, who lives interstate and the applicant's father, who lives New Zealand, both recorded in their respective statements their knowledge of the bond between the applicant and his immediate family members and the devastating effect on them if the applicant’s visa was cancelled (Exhibits A10 and A11).
Other persons who are not family members but who are Australian citizens either gave evidence, in the case of JS, or provided supporting statements.
I was impressed by the evidence of JS, who has only ever known the applicant during prison visits. In addition to his preparedness to offer the applicant employment if he is permitted to remain in Australia, he also spoke of the connection between the applicant and SLK and the effect that his departure would have on her.
The statement from BB, in addition to confirming that the applicant's former employer would engage him, confirmed that he had known the applicant for 29 years, he had regularly visited the applicant in gaol and was amazed at his remorse and resolve regarding turning his life around.
The applicant's former brother-in-law, JK, who was the partner of his sister MD and father of SLK, recorded that he had known the applicant for 22 years (Exhibit A6). He is aware of the applicant’s commitment to his family, the affect that visa cancellation would have on SLK (who, he was aware had offered the applicant accommodation with her partner JS) and the anxiety being experienced by all family members pending the outcome of this review.
JD, the partner of the applicant's youngest daughter EK, recorded in his statement that he has known the applicant for more than 8 years and interacted with him before he commenced his term of imprisonment (Exhibit A5). He also recorded that he was aware of the relationship between the applicant and EK when she was much younger. He recorded, in considerable detail, the distress and anxiety that EK experienced whilst her father was imprisoned, her excitement at reunion with him as his release date approached and her deflation when she learnt that it was intended to cancel his visa.
In concluding this part, I am satisfied, for the reasons given above that the applicant has very strong family ties and the close relationship he shares with his family and friends has endured during his incarceration. Those persons are either Australian citizens or permanent residents. Accordingly, considerable weight should be given in favour of the applicant against the decision to cancel his visa.
9.3 Best interests of minor children in Australia affected by the decision
This primary consideration is concerned with the best interests of a child or children under the age of 18 when considering whether a visa should be cancelled.
The applicant does not have any children under the age of 18 but he does have a special relationship with H, the infant daughter of his sister MD (and sister of SLK) who was born in 2005 (the year before the applicant was sentenced) and who is currently, 7 years old.
The applicant assisted his sister with H, especially because he had the ability to get her to sleep with much ease when no one else could – he became known as the “Baby Whisperer” in our family (Exhibit A4 at [27]).
MD has taken H with her when visiting the applicant in gaol. She spends time with the applicant drawing pictures with pencils and paper provided by prison authorities. According to MD, the applicant and H have a special relationship and H often asks when the applicant will come and visit her at home.
I accept that the applicant did bond with H while he was on bail and living with MD. I also accept that a relationship does exist between them. However, having regard to the criteria in paragraph 9.3, I am not satisfied that this consideration has a significant impact in the balancing exercise I am required to undertake. The relationship is non-parental and H has had limited meaningful contact with the applicant while she was growing up because it was confined to occasional prison visits. I do not accept that at the age of 7, H will suffer adversely if the applicant’s visa was cancelled. Therefore, this primary consideration does not tip the scales either way.
9.4 International non-refoulement obligations
This is the last of the primary considerations. It does not apply to the applicant.
10. Other considerations – visa holders
This is the remaining consideration of Part A. It requires that other considerations must be taken into account where relevant when deciding whether to cancel a visa. Without limiting the potential considerations, paragraph 10(1) specifies the following:
a) Effect of cancellation of the person’s visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b) Impact on Australian business interests;
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i.The person's age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
Before the considerations recorded above are discussed, there is an issue in the context of weight that should be considered.
The predecessor to Direction 55 was Direction 41. In the relevant part of that Direction, under the subheading Other Considerations, the Minister Directed that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
The introduction to Other considerations – visa holders at paragraph 10 in Direction 55 does not have an equivalent Direction with respect to the weight that should be given to considerations determined to be Other, as opposed to Primary. A qualification with respect to weight is found at paragraph 8(4) of Direction 55 which records Primary considerations should generally be given greater weight than the other considerations. It virtually has the same effect as the instruction found in Direction 41, save that it is expressed in the reverse.
In Schuster – McFadyen v Minister for Immigration and Citizenship and Another (2011) 124 ALD 68, Tracey J considered the meaning to be given to the instruction within Direction 41. His Honour decided that other considerations which weighed in the applicant's favour could carry more weight than… adverse primary considerations (at [32]). His Honour said that nowhere in Direction 41 does it say that primary considerations must be given greater weight than other considerations (at [35]). Further, the word generally permitted a conclusion that the non-primary considerations could be found to outweigh primary considerations depending on the circumstances (at [42]).
In Direction 21, which was the predecessor to Direction 41, the relevant language within the Other Considerations part recorded that other considerations would generally be given less individual weight than that given to the primary considerations. To conclude that Direction compelled decision-makers to give less weight to other considerations than to primary considerations:
… would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations. A true balancing process could result in a decision not to cancel a visa when a slight balance of the primary considerations in favour of cancellation is measured against other considerations pointing strongly against cancellation… (per Gray J in Milne v Minister for Immigration and Citizenship [2010] FCA 495 at [45].
On the basis of the above authorities, irrespective of whether the Ministerial Direction records that other considerations should generally be given less weight than primary considerations or whether, as in Direction 55, that primary considerations should generally be given greater weight than other considerations, one thing is very clear. That is, the issues emerging from other considerations must be balanced against the issues that emerge from the primary considerations. The word other should not be regarded as something subservient to primary. Consequently, the issues which attract weight under other considerations do not necessarily carry less weight than those issues which attract weight under primary considerations. The word generally should not be understood to mean must.
The criteria under this part is directed towards the impact of visa cancellation on the applicant's immediate family in Australia (if they are Australian citizens), together with other permanent residents or persons who have a right to remain in Australia indefinitely; Australian business interests; the Australian community generally and especially victims of the applicant’s criminal conduct including their immediate family members and the applicant himself in the context of re-establishing a life in New Zealand having regard to his age and health, any substantial language or cultural barriers he may face and any social, medical or economic support available to him.
There is no evidence that the applicant has any business interests in Australia or that any businesses or persons having business interests have been impacted by the applicant’s conduct. Additionally, there is no evidence that there has been any victim of the applicant’s criminal conduct, nor would there be any impact on the Australian community if his visa is not cancelled.
The applicant arrived in Australia at the age of 17. He is now 49 years of age and has spent virtually all his adult life in Australia but for 2 years between 1990 and 1992. There is no evidence that he has any other friends or associates in New Zealand. His only family members in New Zealand are his father and his mother. In a statement completed by the applicant's father, he recorded that he and his wife (the applicant’s stepmother) live in a small town 65 km north of Auckland. It was his belief that the applicant would not find any support other than from him and his wife. The applicant's mother is in full-time care and suffers from multiple sclerosis. She would be unable to offer assistance or support (Exhibit A11).
Having heard many applications from persons who have migrated to Australia from New Zealand, I am satisfied from the evidence then heard that there is a system of social security and welfare available to New Zealand citizens that would provide some economic and other relief to the applicant. I am also satisfied that there is a high standard of hospital and medical facilities available should the applicant need treatment. However, from the evidence heard in this review, the applicant is unlikely to immediately need any treatment because he currently enjoys excellent health. He will not experience a language barrier if he were to return. Despite him being absent from New Zealand for more than 30 years, nothing points to any substantial… cultural barrier which would impede him. Although having been present in Australia for more than 30 years, it could reasonably be predicted that he will have difficulty reassimilating.
The applicant said that he believed he would find it difficult to obtain employment in New Zealand because of his age. His father recorded that there are few employment prospects where they live. Also from the evidence heard in many other applications, it would appear many persons have migrated to Australia because of bleak employment opportunities in New Zealand.
The remainder of the considerations within this part concern the effect of cancellation of the visa on the applicant's immediate family in Australia and other persons who are either residents or who have a right to remain indefinitely.
The applicant's immediate family are his 2 daughters and his former de facto wife LTP who are Australian citizens. His nieces, SLK and H, JS and JD, the partners of SLK and EKD, his former brother-in-law JK and his friend BB are all Australian citizens. His sister MD is also a person who has a right to remain in Australia indefinitely.
If the visa held by the applicant is cancelled and he is consequently returned to New Zealand, the effect on these persons would be overwhelming.
Both of the applicant’s daughters, who are close to each other, spoke very positively about their memories with their father while growing up (prior to his incarceration). They said that he was always available to them. Whenever possible, he took them to and collected them from school, attended parent teacher interviews, encouraged them to engage in sport and participated with them in recreation. In evidence, the applicant described a lengthy return trip from a town in regional Victoria to Melbourne in order to see his girls. There was also evidence that amongst the items found by police when they executed the warrant, were many photographs of his daughters. I have no doubt that the applicant is a devoted father who loves his daughters very much. Having heard the manner in which the girls spoke about their father, I have no doubt about the close bond they share.
LM and EK are aware of the offences for which their father was charged and convicted. They are also aware that he use to smoke cannabis although never in front of them. Neither of the girls condones the taking of drugs and they both disapproved of their father’s actions. LM, the eldest daughter, said she was angry with him when she first learnt of the charges which caused him to be convicted and she did not visit him at Charlotte. She did visit him at Loddon and following discussions with him and letters that she exchanged, she eventually did forgive him. EK said she has not discussed his drug offences and has preferred to have that discussion when he is released.
Both daughters have suffered emotionally as a consequence of his arrest and incarceration. LM was completing VCE whilst her father was on remand. She said she was unable to concentrate, was anxious and stressed and desperately concerned for him. EK recorded in her statement (Exhibit A17) that her last 2 years of secondary schooling were affected by his convictions and incarceration. EK was also assisted in her studies by the support of a school counsellor.
The applicant’s daughters have suffered emotional illnesses, evident from medical reports received from their treating doctor (Exhibits A8 and A9). A report with respect to EK confirms that that she has been diagnosed with post-traumatic stress disorder and anxiety disorder. The treating doctor recorded that it was her opinion that both daughters have suffered their illnesses as a consequence of the imprisonment of their father, his absence from their lives and the possibility of him being deported.
LM and EK said that they frequently visited their father and had have observed a positive change in him. They believe that he would not reoffend and believe that he wants to regain, with them, the years that he has lost. EK said that she is upset when she is in the presence of other families and regrets the opportunities that she has lost with her father. As an example, she referred to birthdays and Christmas where he has been absent. She said the last outing that she had with her father before he commenced his term of imprisonment was at the Werribee zoo. She said that she has told him that when he is released, she wants to return there with him. I interpret that as meaning she wants to resume her relationship from the occasion when it was interrupted.
LM and EK said they counted down the days as his release from gaol approached and were making plans to go away with him to make up for lost time but were devastated to learn that his visa may be cancelled. They had also been looking for a rental property for him.
The applicant's former de facto partner LTP said that the applicant was a great father and he was always available to their daughters. She said he never said no to them and she wouldn't have chosen a better man as their father. She corroborated the evidence of her daughters that he had attended parent teacher interviews and sporting events and was always encouraging. The applicant continued to commit himself to their daughters and engaged with them after they separated. She said that he would take and engage with them in many recreations, including rock climbing and rollerblading.
LTP said that after the applicant commenced his period of remand at Charlotte, she drove EK, at night, in the streets outside and around the prison because she missed her father and it allowed her to be close to him.
LTP said that she wants to attempt reconciliation with the applicant and resume their previous relationship. She lives in a two-bedroom unit with LM but is not immediately able to offer him accommodation should he be permitted to remain in Australia. She is aware that the applicant has been offered, and has accepted, accommodation with SLK who lives nearby and the opportunity will exist for her and the applicant to have frequent contact.
LTP has been unwell and is about to have surgery and would prefer the applicant to be available to care for her. She is aware that the applicant has indicated to her that he will obtain employment and earn an income. She said that he has also told her that it is his intention and wish to be able to buy a home.
LTP said that she trusts the applicant and does not believe he will reoffend.
The applicant and his sister, MD, have a close relationship. She arrived in Australia a few years after the applicant. He supported and found accommodation for her, helped her to find a job and introduced her to Melbourne and its public transport. She and her partner later employed the applicant after he separated and she provided the equity in her home as surety for his bail when he was released from remand. She said that she will offer him financial support and any other assistance that he needs in the event that he is permitted to remain in Australia.
MD said she visited the applicant whilst imprisoned. She said that she was initially shocked to see him on remand at Charlotte, however she observed him to become drug and alcohol free, he was a voracious reader of books (which she provided) and she noticed that he put on weight. She had a number of discussions with prison guards who spoke positively about him. She recalled that the applicant initially was very depressed but he became mentally and physically stronger and is now well-motivated.
MD spoke of the relationship between her brother and her infant daughter H. She said the applicant is very maternal and both he and H have developed a close relationship during his imprisonment. She said that except for when H was a baby, she has only ever known him in prison where they have both visited him. She said that H does not understand that he is in a prison and wants to know when he will be shifting.
MD said that reoffending is furthest from his mind. She said that all members of his immediate and extended family are very keen to have him back. She said he won't reoffend and put us through this again.
The applicant's niece, SLK, frequently visited the applicant whilst imprisoned and she noted that he had become fit and healthy, had quit smoking, had passed all drug and urine tests and had become a better father to LM and EK. She said the changes in him were noticed by all family members. She and her partner JS had offered the applicant accommodation in their home and JS had also offered him employment.
She said if her uncle was deported it would be awful, especially because of the changes he had made. She said it was unbearable to contemplate him living in New Zealand. She said he had worked very hard to change his life and to show us the changes. If he was deported it would undo all his hard work and deny reunion of the family with him.
In concluding this part, a number of features have emerged from the evidence in this review.
The first is the support that he has been given by his family (both immediate and extended) and his friends. A very clear and unambiguous message has come from the evidence of all witnesses, namely, their wish to be reunited with the applicant and their commitment to ensure that he has accommodation, employment, financial and emotional security. They have all expressed confidence that he has rehabilitated and accepted his pledge not to reoffend. The applicant has demonstrated to his family and friends his commitment to them by his rehabilitation and the expression of his intention to commit to restoring relationships and reassuring them that he is worthy of their trust. The network of support within his family (which will not be available to him in New Zealand), allows confidence to be expressed that the applicant, if permitted to remain in Australia, will obey Australian laws and he will not reoffend.
Another feature is the relationship that exists between the applicant and his daughters. They were both secondary school students when they first became aware that he had offended and was being investigated by the police. They were home alone when members of the Purana task force entered their home looking for their father which, unsurprisingly, was a traumatic experience causing on-going emotional illnesses. The distress was exacerbated when they sat through the sentencing process and learnt, in some detail, of their father’s offending and eventually when the sentence was imposed. Despite the distress experienced and the adverse effect on their health, they visited their father whilst incarcerated (on 233 occasions ‑ Exhibit R1, page 158) and their relationship with him has become stronger. They have expressed their regret and unhappiness with his behaviour. He, in return, has reassured them that he will commit to them on his release. They have also expressed their forgiveness and love for him. They were excited as his release date approached and their upset at learning of the intention to cancel his visa is not difficult to understand.
Despite their personal circumstances since 2006, LM and EK have obtained tertiary qualifications, they have each obtained secure employment and they are now mature young women. I am satisfied that the sentiments expressed by them are true and the emotions they exhibited whilst giving their evidence were a genuine reflection of how they felt. In a personal details form, the applicant was asked whether he had any concern or fear about what would happen to him if he returned to New Zealand and he responded (Exhibit R1, page 80):
The thought of not being able to see my daughters is already having a negative effect. My eldest daughter has been losing her hair from stress. I would honestly rather stay in jail and see the kids then be free and not see them.
I am satisfied that this is a sincere and truthful expression of the applicant’s concerns, particularly having regard to the impact of his incarceration on his daughters’ health.
I am satisfied in the circumstances that the applicant should be permitted to continue to reside in Australia where he and his daughters will have the opportunity to resume a day‑to‑day relationship (lost over the last 7 years), which would be impossible, if he is returned to New Zealand.
If the applicant’s visa was cancelled and he was forced to return to New Zealand, the effect on the applicant's immediate and extended family and friends would be crushing, especially his daughters. Contact by telephone, email or skype and, to a far lesser extent, by personally visiting him, would be another form of punishment on the applicant, which, for all the above reasons, I am satisfied is not warranted. A further separation from their father would cause further anguish for LM and EK which in the circumstances cannot be justified.
I am satisfied that considerable weight should be found in favour of the applicant at this part of Direction 55.
The accumulation of positive weight the applicant attracts is sufficient to tip the scales against the weight found earlier in relation to the serious nature of his conduct.
SUBMISSIONS
Both parties were represented at the hearing by competent counsel and I am grateful to them for their assistance throughout the hearing. I have not specifically referred to their submissions in the above decision but rather have been mindful of them in reaching conclusions.
Counsel for the Minister brought to my attention a decision of the Tribunal constituted by the former president Downes J and Senior Member McCabe in ReVisa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690. It is a decision worthy of consideration because the Tribunal discussed how it informs itself of what would constitute an acceptable risk by the Australian community in the context of administrative decision making involving the exercise of a discretion. This issue was raised as an introduction to the Minister’s submissions that the applicant’s visa should be cancelled because of the extent of adverse weight that should be found.
The Tribunal found at [50] that community values in Australia assess the right to live in Australia as a significant and beneficial right which should be conferred with care and only on persons deserving the privilege. That finding is not inconsistent with the Principles within Direction 55. However, it does not follow, as was submitted, that there is conduct which would be regarded so seriously that it would militate against remaining in Australia, as of right. To follow that path would involve a failure to properly consider all the circumstances of the case which would amount to a denial of procedural fairness and prevent the making of the correct or the preferable decision, both of which are critical in administrative review. Such a path would also be inconsistent with the provisions in Direction 55 which I am bound to apply.
Evidence was not heard in this review about what the Australian community holds as its values. Whilst the Tribunal cannot adopt its own personal views about a particular offence or conduct by a person, drug-related offences, I think, would undoubtedly be regarded by the Australian community as a violation of contemporary and moral values. If nothing else is known, it might be considered that such an offender should be removed from the Australian community.
In this application, Direction 55 must be acknowledged and applied. It specifies the Principles at 6.3 and the primary and other considerations which I am compelled to regard in exercising the discretion in s 501(2) of the Act. The seriousness of the offence is a relevant consideration. However, regard must be given to the circumstances of offending, the visa holder’s contribution to and connection with the Australian community, family ties (and the consequences of dislocation should the visa holder be removed from the community), attempts at rehabilitation and any risk of further offending. Contemporary social values and standards are also very relevant.
It is only when this process is properly conducted and a true balance for and against visa cancellation is concluded that the discretion can be considered to have been properly exercised.
DECISION
In the present case, I am not satisfied, for the reasons expressed earlier, that the criminal conduct of the applicant, although very serious, should cause him to be removed from Australia.
I am satisfied that the applicant does not pose an unacceptable risk to the Australian community and he should not be denied the privilege of remaining in Australia. I am satisfied, having had the benefit of a wealth of evidence and other material not known or available to the Ministers delegate, that the preferable outcome is a reversal of the decision to cancel the applicant’s visa. On the basis of the evidence in this review, it is an outcome that would also be consistent with Australian community values.
It is for all of the above reasons that I decided at the conclusion of the hearing to set aside the decision under review and substitute a decision that the applicant’s visa should not be cancelled.
I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
...........................[sgd].................................
Associate
Dated 5 December 2012
Date(s) of hearing 12-13 November 2012 Counsel for the Applicant Ms C. Melis Advocate for the Applicant Ms M. Keating Solicitors for the Applicant Carina Ford Immigration Lawyers Advocate for the Respondent Mr D. McLaren Solicitors for the Respondent Sparke Helmore Lawyers
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