Whiston and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 836
•29 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 836
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2005/164
GENERAL ADMINISTRATIVE DIVISION ) Re TIMOTHY CHARLES WHISTON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Senior Member R W Dunne Date29 August 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration and directs that:
(a) the discretion under s 501(2) not to cancel the applicant’s visa be exercised in favour of the applicant; and
(b) the applicant be formally warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION - transitional (permanent) BF visa - decision not to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 21 - primary and other considerations - whether other considerations can outweigh primary considerations – applicant resident in Australia for more than 20 years after arriving when aged 5 - offending related to heroin addiction - reasonable prospects of rehabilitation - evidence of family support - decision under review set aside.
PRACTICE AND PROCEDURE – Tribunal prohibited from having regard to information not provided to respondent at least 2 business days before hearing – statutory provisions as to parole considerations – respondent presumed to know the law – Tribunal not precluded from having regard to likely consequences of statutory provisions.
Migration Act 1958, ss 501(2) and 500(6H)
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Re Grant and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
Re Burns and Minister for Immigration and Multicultural Affairs [2001] AATA 18
Krahe v TCN Channel 9 Pty Ltd (1986) 4 NSWLR 536
Brebner v Bruce (1950) 82 CLR 161
Marshall v Wettenhall Brothers (1914) VLR 266
REASONS FOR DECISION
29 August 2005 Deputy President D G Jarvis and Senior Member R W Dunne 1. The applicant, Timothy Charles Whiston, came to Australia from the United Kingdom in February 1984, when he was five years old.
2. On 9 June 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs informed Mr Whiston that he was cancelling his visa on the grounds that Mr Whiston did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). Mr Whiston had been the holder of a transitional (permanent) BF visa. The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the visa. Mr Whiston has applied to this Tribunal for review of the delegate’s decision.
Issues for the Tribunal
3. Under the relevant provisions of the Act, a person does not pass the character test if he or she has a substantial criminal record, and is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more. The section refers to the sentence imposed, even if the time actually spent by the person in prison is less than twelve months : Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105 at [27]. Mr Whiston was sentenced to imprisonment for terms exceeding this period on 3 December 2001 and 29 September 2004. It was conceded at the outset of the hearing that he does not pass the character test.
4. However, there is a discretion under s 501(2) of the Act not to cancel a visa. The only issue before the Tribunal is whether the discretion not to cancel Mr Whiston’s visa should be exercised in his favour.
Background Evidence
5. The Tribunal makes the following findings from the evidence of Mr Whiston, witness statements which were tendered by consent, and the documentary material before the Tribunal. Mr Prince, counsel for the respondent, submitted that there were a number of inconsistencies between Mr Whiston’s evidence and other evidence before the Tribunal. The Tribunal accepts that this was so, but considers that the inconsistencies were minor, and related to such matters as names, dates and chronological order. The Tribunal found that the substance of Mr Whiston’s evidence was consistent, honest and accurate, and accepts his evidence, except where otherwise stated in these reasons.
6. Mr Whiston was born in the United Kingdom on 10 February 1979. He arrived in Australia on 22 February 1984, with his parents and his older step-siblings. His parents are Australian citizens, and his step-sister and (from the Tribunal’s understanding of the evidence before it) step-brother are also permanent residents of Australia. The only member of Mr Whiston’s family living in the United Kingdom is his aged grandmother, whom he has not seen since he left that country.
7. Mr Whiston began school at the Glenelg Primary School, which he enjoyed, and he made a lot of friends there. However, when the family moved and he changed to the Brighton Primary School, he found it difficult to make new friends. He began to feel depressed and put on a lot of weight. The other students often teased him about his weight. He started associating with “the wrong type of people” because he found that he was treated better by them than by the other children.
8. When Mr Whiston later went to Brighton High School, he found himself in the same situation. He felt that he did not fit in, and felt uncomfortable. He did not find the academic work difficult, but found it stressful dealing with the other students, and did not associate with them.
9. Mr Whiston left Brighton High School around Year 8. He went to Mawson High School for six months, but then left and began to look for work. He found work as a roof tiler when he was fifteen years of age. He then went on to work as an assembler and as a fork-lift driver, and he did other labouring work. When he was seventeen years of age his father arranged for him to have work experience at Santos. He found this to be a great experience, and he earned quite a bit of money over the period that he worked there.
10. Mr Whiston gave evidence that he had for years been smoking cannabis on a regular basis. The evidence of his mother, Lisa Whiston, was that she believed he was taking drugs when he was around seventeen or eighteen years of age, and possibly earlier. When he was thirteen, she approached him about smoking marijuana, but he denied it.
11. At the age of seventeen, Mr Whiston commenced a relationship with a girl, Lorian, then aged sixteen. They experimented with smoking heroin. They were together for a year before separating. Lorian committed suicide six months later because her mother had cancer.
12. When he was eighteen, Mr Whiston commenced a new relationship with a girl called Tania. He said that he was with Tania, but was still very close to Lorian. He and Lorian had made contact again and he was thinking about leaving Tania and re-starting his relation with Lorian. It was at about this time that he heard that Lorian had committed suicide. He was devastated, and felt responsible for her death.
13. Following Lorian’s death, Mr Whiston started to use heroin regularly. He continued working and supported his own drug habit as well as Tania’s. When their relationship commenced, Tania was at school and he tried to encourage her to stay there. Later Tania left school and began working in a supermarket. Mr Whiston felt that he had a responsibility to look after her.
14. Eventually Mr Whiston stopped working and, although he had offended previously, he said that his significant offending began in 2000. Details of his offences will be referred to later.
15. Mr Whiston’s employment details are set out in exhibit R1. These details differ in a number of respects to the evidence given to the Tribunal, but we do not find it necessary to resolve these differences.
16. Mr Whiston’s father is fifty-seven years of age and is a production co-ordinator with Santos at Moomba, where he works a two weeks on, two weeks off roster. His mother is also fifty-seven years of age and she is an agency nurse.
17. Mr Whiston’s offending commenced in December 1994. He first appeared in the Adelaide Children’s Court at the age of sixteen years and was convicted for the offences of unlawfully on premises and larceny. He appeared a further five times in the Children’s Court between 1995 and 1996. On 20 October 1997 he first appeared in an adult court (the Adelaide Magistrates Court) and was convicted of the offences of driving without due care and failing to carry provisional licence. However, his more significant offences commenced in January 2000, and he has the following convictions in South Australia for which he was sentenced to terms of imprisonment:
(a)On 6 October 2000, he was convicted in the Adelaide Magistrates Court of the following offences, which occurred on the dates indicated:
11.01.2000 False information or document to second-hand dealer
11.01.2000 Receiving
05.01.2000 False information or document to second-hand dealer
05.01.2000 Receiving
06.01.2000 False information or document to second-hand dealer
06.01.2000 Receiving
11.01.2000 False information or document to second-hand dealer
11.01.2000 False information or document to second-hand dealer
11.01.2000 Receiving
21.09.2000 Larceny
22.09.2000 No licence
22.09.2000 Unregistered vehicle.
He was convicted without penalty of the last two offences listed above, and received a suspended sentence of four months’ imprisonment for the other offences.
(b)On 3 December 2001 he was convicted in the Adelaide Magistrates Court of the following offences, which occurred on the dates indicated:
24.08.2001 Application for enforcement of a breached bond
11.01.2000 False information or document to second-hand dealer
11.01.2000 Receiving
05.01.2000 False information or document to second-hand dealer
05.01.2000 Receiving
06.01.2000 False information or document to second-hand dealer
06.01.2000 Receiving
11.01.2000 False information or document to second-hand dealer
11.01.2000 False information or document to second-hand dealer
11.01.2000 Receiving
21.09.2000 Larceny
28.09.2000 Drive or use motor vehicle without consent
28.09.2000 No licence
28.09.2000 Fail to truly answer
01.01.2000 Receiving
05.01.2000 False information or document to second-hand dealer
05.01.2000 Unlawful possession
04.01.2000 Receiving
06.01.2000 False information or document to second-hand dealer
06.01.2000 Unlawful possession
07.01.2000 Unlawful possession
07.01.2000 False information or document to second-hand dealer
09.01.2000 Unlawful possession
09.01.2000 False information or document to second-hand dealer
23.10.2000 Interfere with motor vehicle without consent
08.03.2001 False name and address
08.03.2001 Provide false information on a bail application
28.09.2000 Possessing (nominate controlled substance)
He received the head sentence of sixteen months’ imprisonment with a non-parole period of three months.
(c)On 29 September 2004 he was convicted in the Adelaide Magistrates Court of the following offences which occurred on the dates indicated below:
11.05.2004 Fail to comply with bail agreement
11.01.2004 Fail to inform police of failure to comply with agreement
25.01.2004 Fail to inform police of failure to comply with agreement
16.12.2003 Fail to comply with bail agreement
11.10.2003 *Non-aggravated serious criminal trespass (place of residence)
11.10.2003 *Dishonestly take property without owner’s consent
11.10.2003 *Fail to comply with bail agreement
20.04.2003 *Non-aggravated serious criminal trespass (place of residence)
10.10.2003 *Non-aggravated serious criminal trespass (non-residential)
10.10.2003 *Dishonestly take property without owner’s consent
11.10.2003 *Dishonestly take property without owner’s consent
23.06.2003 *Drive or use motor vehicle without consent
22.07.2003 *Drive or use motor vehicle without consent
14.08.2003 *Fail to comply with bail agreement
28.07.2003 *Drive or use motor vehicle without consent
28.07.2003 *Drive vehicle without licence
09.02.2004 *Damaging property
09.02.2004 Fail to comply with bail agreement
15.02.2004 *Dishonestly receive property without owner’s consent
15.02.2004 *Interfere with motor vehicle without consent (attempted)
21.09.2003 Fail to comply with bail agreement
17.09.2003 Fail to comply with bail agreement
17.08.2003 Fail to comply with bail agreement
04.08.2003 Fail to comply with bail agreement
24.03.2003 Larceny
He was sentenced to thirty five months’ imprisonment, with a non-parole period of fourteen months, for the offences marked with an asterisk above. He was convicted without penalty for the remaining offences.
18. Prior to his convictions in the Adelaide Magistrates Court on 29 September 2004, Mr Whiston was interviewed on 3 August 2004 by a registered psychologist, Mr Richard Balfour. Mr Balfour’s report was tendered as exhibit A2 (“Balfour Report”).
19. While Mr Whiston was in prison in 2001, he completed the following programmes at the South West Community Correctional Centre:
Victim Awareness – 14.08.2001 to 04.09.2001
Alcohol and Other Drugs Brief Intervention – 01.08.2001 to 08.08.2001
Alcohol and Other Drugs Relapse Prevention – 31.05.2001 to 21.06.2001
Mr Whiston said that he also undertook a course in anger management, but no independent evidence tendered to confirm this. Mr Whiston also took part in the Drug Court Programme for two periods from 17 October 2003 to 16 February 2004 and from 19 April 2004 to 11 June 2004.
Legislation
20. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
21. Subsection 501(2) provides as follows:
“(2) 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.”
Consideration of Ministerial Direction No. 21
22. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. The Tribunal will address the relevant considerations in the Direction in turn.
23. The three primary considerations in the Direction are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
24. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
25. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
26. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The examples include:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs;
(b)armed robbery (including robbery involving the use of imitation weapons), home invasion; and
(c) any other crimes involving violence or the threat of violence.
27. The majority of offences committed by Mr Whiston, for which he was convicted and sentenced in 2000 and 2001, were driving and dishonesty offences. More serious offences, for which convictions occurred and the sentence was imposed in 2004, included dishonestly taking property without the owner’s consent and non-aggravated serious criminal trespass (both residential and non-residential). Although these offences are clearly serious, they do not fall within the categories of examples of offences that are considered to be “very serious” within paragraph 2.6 of the Direction. The Tribunal does not view the offences of non-aggravated serious criminal trespass (both residential and non-residential) as amounting to “home invasion” within paragraph 2.6(e) of the Direction, and we adopt the analysis and conclusion on this point by Deputy President Jarvis in Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 505 at paragraphs 21 – 26 (inclusive). He there said that home invasion occurs when an intruder enters a dwelling by force or coercion at a time when one or more of its occupants is present, and the intruder intends to commit or actually commits one or more further offences, such as larceny or attempted larceny of property from the dwelling, or there is a confrontation between the intruder and the occupant(s), involving violence or threat of violence against the occupant(s), or damage or threat of damage to the dwelling or property within it.
28. Under paragraph 2.7 of the Direction, the Tribunal must take into account the sentence imposed for the relevant crime(s), and (by virtue of paragraph 2.8(a)) any relevant mitigating factors. In this context it is relevant to take into account the non-parole periods determined, and whether any sentences were suspended, as these matters provide some indication as to how serious the sentencing courts regarded the offences concerned. Mr Whiston was sentenced to three terms of imprisonment. The first term was four months (suspended), the second term was a head sentence of sixteen months (with a non-parole period of three months) and the third term was a sentence of thirty-five months (with a non-parole period of fourteen months). Mr Whiston was due to be released from prison on parole on 9 August 2005.
29. By virtue of paragraph 2.7(a) of the Direction, the Tribunal must also have due regard to the extent of the non-citizen’s criminal record, including the number and nature of the offences, the time between offences, and the time that has elapsed since the most recent offence. Under paragraph 2.7(b), the Tribunal must consider the repugnance of the crime. Mr Whiston has a continuous criminal history which, even if some of the less serious offences between 1994 and 1999 are ignored, stretches over four years. The number of offences is considerable and many are repeat offences. Mr Whiston also has a history of offending whilst subject to parole or bail obligations, having previously committed similar offences. Although his offending may have been to support his personal drug habit, he appears to have failed to appreciate the seriousness of his offending and has shown a total disregard for the law. His crimes may not have been repugnant (within the meaning of paragraph 2.7(b) of the Direction), nor “very serious” (within paragraph 2.6 of the Direction), and they did not entail trafficking in drugs, or violence to the person. However, the number and extent of the offences were, in the Tribunal’s view, serious and must be viewed as such within the context of the protection of the Australian community and members of the community.
30. Having considered Mr Whiston’s criminal history and the sentence imposed in September 2004, the Tribunal must take into account any relevant mitigating factors. Counsel for Mr Whiston, Ms Richards, referred in this regard to the sentencing remarks of Mr P Foley SM on 29 September 2004 when he said (exhibit R2 at page 132):
“In view of the significant prospects you have for a successful rehabilitation I propose a shorter than normal non-parole period of fourteen months. That non-parole period will be backdated to commence, as will the head sentence, on 10 June 2004.”
31. Mr Whiston will have served two terms of imprisonment where the head sentence has been in excess of twelve months. However, on each occasion he was given reasonably short non-parole periods, suggesting that the Court, whilst finding that the offending warranted terms of imprisonment, did not consider the offending particularly serious, and thought further that there were reasonable prospects for rehabilitation.
32. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
33. There is evidence of the likelihood that Mr Whiston might re-offend. Mr Balfour reports (exhibit R2, at page 8):
“Mr Whiston said that his heroin addiction is an ongoing problem. He said that when he is released into the community he experiences a relapse, offends, and is re-incarcerated. … He still believes that he is at risk for experiencing further relapses of his heroin addiction. He is motivated to cease using heroin.”
Mr Prince submitted that Mr Whiston had many opportunities to change his behaviour, including by release on bail, parole, home detention bail and the Drug Court Programme, and yet he still re-offended. In this regard, it is noted that, during the Drug Court Programme, Mr Whiston committed seven offences, three of which could be regarded as serious. However, Ms Richards submitted that there was evidence of an improvement in his behaviour. In Mr Whiston’s pre-sentence report dated 28 November 2001 (exhibit R2, at page 148) it was said that Mr Whiston showed “no significant desire to uphold his responsibilities regarding reporting (for supervision).” However, in a Correctional Services report dated 12 June 2002 (exhibit R2, at page 134), it was said that Mr Whiston had “reported regularly for supervision on a weekly basis, although in recent times he has reported on the wrong day.”
34. The Tribunal also notes that Mr Whiston was aware of the risk of cancellation of his visa. By notice dated 2 September 2002 he was informed by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) that it was considering cancelling his visa. He apparently understood this situation as at August 2004, because in Mr Balfour’s report (exhibit R2, at page 13), he is reported to have said that DIMIA was possibly looking to deport him.
35. Mr Whiston has been in gaol since August 2004. His evidence is that, during this period, he has received treatment for depression, which he has struggled with on and off since primary school. He is currently taking Azanza to treat his depression, and he finds this helps a great deal. He has also been on a methadone programme, which he says has been really positive for him. He now finds that he no longer thinks about taking drugs, and is positive about the future. It is clear that the cancellation of his visa has caused him extreme concern, and that he has a strong desire to remain in Australia. The Tribunal thinks that this will provide a very strong incentive for him to achieve rehabilitation. Mr Whiston is relatively young and he will have the strong support of his immediate family if he is allowed to remain in Australia. The Tribunal thinks that he has reasonably good prospects of rehabilitation.
36. It seems clear from Mr Whiston’s evidence and the other material before the Tribunal that the offences for which he was sentenced in 2000 and 2001 and, more particularly, in 2004 were related to his drug addiction, and the Tribunal finds that the offences were committed to fund that addiction. Whilst the date when Mr Whiston last used heroin is uncertain from the evidence before the Tribunal, it finds that he is no longer using that drug, and until shortly before the expiration of his non-parole period on 9 August 2005 he had been taking methadone to assist him to stop taking heroin. He says that he is also relieved to know that he is no longer in debt. He says that the Court waived his previous debts (for breach of his bail agreement and Court fines) when he was sentenced. Mr Whiston also believes that he will have no problem in getting a job when he is released from gaol, and this belief is supported by the evidence given by his father, Mr Melvyn Whiston (exhibit A5, at paragraphs 17-18). In all these circumstances, the Tribunal believes that the risk of recidivism has been reduced. On balance, we think that the risk should now be assessed as no more than moderate.
37. General Deterrence The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c) of the Direction). Of course, any deterrence would depend on the publicity given to any cancellation of a visa. In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of Mr Whiston, and may provide some deterrence to other persons. Further, the fact of cancellation would enable DIMIA to point to an established precedent. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has as to the seriousness of crimes involving drug offences, and the Government’s policy of taking reasonable steps to protect the Australian community, and in particular young people from such crimes. In this regard, the Tribunal notes the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed. However, there is no evidence that the general deterrent effect would be significant if the cancellation of the applicant’s visa is confirmed, and the Tribunal attaches little weight to this aspect.
38. Having had regard to all of the factors relevant to the first primary consideration, the Tribunal considers that, on balance, this consideration would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
39. The second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
The Tribunal also takes into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
40. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr Prince drew attention to the pattern of the applicant’s offending, and the matters referred to in paragraph 17 above. He argued that Mr Whiston has had numerous opportunities and has been given support to overcome his addiction and stop offending, but has been unable to take advantage of these opportunities. Mr Prince submitted that the Australian community would expect to be protected against offending of the kind committed by Mr Whiston.
41. As against those submissions, Ms Richards submitted that, in the circumstances of Mr Whiston, the Australian community would consider that he should be given a “fair go” and be allowed another chance. She argued that the focus of the Australian community was rehabilitation and not imprisonment, that Mr Whiston had changed and that he should be given the opportunity to show this. The Tribunal is conscious of the fact that Mr Whiston has been in Australia for more than twenty years, and all of his adult life. The Tribunal notes in this regard the disquiet expressed by the members of the Full Federal Court in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121, where their Honours pointed out that the effect of the Minister’s cancellation of the appellant’s visa in that case would have been to remove him to a country with which he had no connection, and to permanently banish him from Australia where all of his relevant family were, because of crimes committed in Australia, and where his banishment could have been avoided except for what could be characterised as an accident of history and an oversight on the part of his parents. The Tribunal appreciates that these comments were obiter, and were not directed to the second primary consideration or any other specific provision of the Direction. However, the Tribunal with respect finds their Honours’ comments to be cogent, and thinks they are likely to reflect the views of the Australian community in cases which involve circumstances similar to those that existed in Nystrom’s case. The present matter is such a case. In all the circumstances, the Tribunal believes that the Australian community would think it appropriate to give Mr Whiston one last further opportunity to show that he can live in Australia as a law-abiding and responsible citizen.
42. Taking all of the evidence into account, the Tribunal thinks that this second primary consideration would not necessarily dictate that the applicant’s visa should be cancelled.
Third Primary Consideration – Best Interests of a Child or Children
43. As Mr Whiston has no children, this consideration is not relevant.
Other Considerations
44. The Tribunal now refers to such of the other considerations included in paragraph 2.17 of the Direction as are relevant to the present matter. In doing so, the Tribunal takes into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
45. The Tribunal refers to the analysis of Deputy President Jarvis in Wineti (supra), and adopts with the conclusion at [54] of that decision that whilst the Direction provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; and in particular, one or more of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
46. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. Mr Prince submitted that Mr Whiston had no business or other ties in the Australian community. He acknowledged, however, that there would be some disruption to Mr Whiston’s family if his visa was cancelled and he was forced to leave Australia, and the Tribunal finds that this would be the position.
47. Paragraph 2.17(c) refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere.
48. Ms Richards focused on the hardship that would be caused to Mr Whiston and his immediate family if he had to leave Australia. She pointed to the fact that Mr Whiston’s family was very supportive of him, and would suffer considerable hardship or difficulty if his visa was cancelled. The Tribunal accepts this position, and notes the following matters from the evidence before it which are relevant to the issues raised under paragraphs 2.17(a), 2.17(c) and 2.17(d) of the Direction.
(a)If he remained in Australia, Mr Whiston is likely to reside with his parents, and this would be of emotional and physical support to his mother, particularly when his father was working at Moomba.
(b)All Mr Whiston’s immediate family are in Australia. There is no real family support in the United Kingdom. He has only an aged grandmother, whom he has not seen since he left that country in 1984.
(c)Mr Whiston’s mother does not think he has the skills to survive alone in the United Kingdom (exhibit A4, at paragraph 31). She feels that to send him to a country where he has no friends, no family and where he has never lived since his early childhood would be devastating for him.
(d)Although Mr Whiston’s family would be able to remain in contact with him and visit him in the United Kingdom, it is unlikely that his parents would be able to do that more than a couple of times after his father’s retirement, due to their advancing age and financial position.
49. Paragraph 2.17(d) of the Direction requires the Tribunal to consider the composition of the applicant’s family, both in Australia and overseas. The Tribunal has already referred to the position of Mr Whiston’s immediate family in Australia. It seems to the Tribunal that, if the discretion is not exercised in favour of Mr Whiston, it is likely that he would have very limited contact with all his immediate family in the future.
50. Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). The Tribunal notes that, since completing the Drug Court Programme, Mr Whiston has not re-offended. Although his evidence originally was that he was slowly cutting down his methadone dosage, the Tribunal notes that he has now come off that medication altogether. He said that he has done this in preparation for leaving gaol and entering the Baxter Immigration Detention Facility. The Tribunal has already referred to matters that suggest Mr Whiston is seeking to be rehabilitated. In particular, the Tribunal notes the positive sentencing remarks made by Mr P Foley SM at the applicant’s trial on 29 September 2004, and the shorter than normal non-parole period imposed on that occasion and on the occasion of his previous sentence on 3 December 2001.
51. The Tribunal referred in paragraph 35 above to the prospects of rehabilitation. The Tribunal also notes that in his report dated 14 September 2004 (exhibit A2, at page 13), Mr Balfour expressed the view that Mr Whiston’s prognosis to cease offending was poor in the short-term without the assistance of a supervised, structured rehabilitation programme. Mr Balfour reported that the rehabilitation would be lengthy (i.e. two to three years). On the issue of rehabilitation, Ms Richards sought to introduce into evidence Mr Whiston’s parole conditions upon his release from gaol on 9 August 2005. Mr Prince objected to the introduction of that evidence on the basis that the Tribunal was, by virtue of s 500(6H) of the Act, unable to have regard to the parole conditions as that information had not been given to the Minister at least two business days before this hearing. However, the Tribunal is of the view that the respondent should have been (or should be deemed to be) aware of the relevant legislative provisions in respect of Mr Whiston’s eligibility for parole and the conditions that may have been imposed upon him following his release from gaol. The Tribunal refers to the general principle that all citizens are presumed to know the law (Krahe v TCN Channel 9 Pty Ltd (1986) 4 NSWLR 536 at 546), and to the further general principle that Acts of Parliament need not be proved (Brebner v Bruce (1950) 82 CLR 161 and Marshall v Wettenhall Brothers (1914) VLR 266).
52. Section 66 of the Correctional Services Act 1982 (Sth Aust) provides in effect that the Parole Board must order a prisoner who has been imprisoned for less than five years and for whom a non-parole period has been fixed to be released from prison no later than 30 days after the expiry of the non-parole period. Further, s 68(1) of that Act provides in effect that the release of a prisoner on parole must be subject to the conditions that the prisoner not commit any offence and that the prisoner:
(a) be under supervision of a community corrections officer; and
(b) obey the reasonable directions of the community corrections officer
until the expiration of the period of parole, or such earlier date as is specified by the Parole Board. The sub-section goes on to provide that the release of a prisoner on parole may be subject to any other condition fixed by the Board. Under s 68(2), in fixing or recommending conditions to which the release of a prisoner on parole will be subject, the Board must have regard, amongst other things, to the circumstances of the offence(s) for which the prisoner was sentenced to imprisonment, and any reports tendered to the Board on the social background, the medical, psychological or psychiatric condition of the prisoner, or any other matter relating to the prisoner, as well as any other matters that the Board thinks are relevant.
53. Although the Tribunal was not referred to it in any detail at the hearing, the Tribunal notes the parole report (and the parole conditions attached to it) that was prepared on 28 November 2001 prior to Mr Whiston’s release from prison in March 2002. Given the nature and extent of Mr Whiston’s previous offences, the statutory provisions referred to in the preceding paragraph, and the nature of the parole conditions previously applicable, the Tribunal expects that the parole conditions imposed upon him on his release from prison on 9 August 2005 would include conditions that would enable the authorities to monitor the progress of his rehabilitation, and to support that process as required. The period of his parole, unless (which seems unlikely) it is abbreviated by the Parole Board, will be a further 21 months after his release from gaol, which together with his period of imprisonment will result in his receiving rehabilitative support for a significant continuous period. In these circumstances, the Tribunal considers that the parole supervision and conditions likely to be imposed upon Mr Whiston can be expected to assist in meeting the supervised, structured rehabilitation programme recommended by Mr Balfour in his report. The Tribunal further infers that the respondent should be imputed with this knowledge and that it is not precluded by s 500(6H) of the Act from having regard to it. Having said all this, the Tribunal also nevertheless makes it clear that, in reaching its ultimate decision, the issue of Mr Whiston’s parole conditions as part of his rehabilitation programme has formed only a part of its deliberations in considering the application of the Direction, and in particular, paragraph 2.17(h), and the Tribunal does not regard this aspect as decisive in itself.
54. The final relevant consideration under this heading is that referred to in paragraph 2.17(k) of the Direction, namely that the applicant has been formally advised in the past by an officer of DIMIA about conduct which brought him within the cancellation provisions of s 501 of the Act. As already adverted to by the Tribunal, Mr Whiston was notified by DIMIA, on 2 September 2002, of the Department’s intention to consider cancelling his visa under s 501(2) of the Act. Mr Whiston’s evidence was that he recalls receiving the notification, but was unaware that anything was required of him. Mr Balfour’s report indicates that, in August 2004, Mr Whiston was also aware that the Department was possibly looking to deport him. This aspect counts against Mr Whiston (although it is apparent that as a result of the delegate’s decision to cancel his visa, he now fully realises in hindsight the gravity of his situation and of this warning).
55. In support of her submissions, Ms Richards referred the Tribunal to the decisions of Deputy President Chappell in Re Burns and Minister for Immigration and Multicultural Affairs [2001] AATA 18 and Deputy President Forgie in Re Grant and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3. We agree with Mr Prince’s contention that those decisions are distinguishable from the facts in Mr Whiston’s case. In reaching its decision, the Tribunal has had regard to the particular facts of the present matter. Other decisions referred to by counsel have not been of particular assistance except to the extent that they lay down relevant principles of general application.
Conclusion
56. The Tribunal has had careful regard to the considerations set out in the Direction and to the importance placed by the Government on the three primary considerations in the Direction. The cancellation of Mr Whiston’s visa would assist in the protection of the Australian community. The number and frequency of offences committed by Mr Whiston in Australia are significant. However, although the offences are serious, they are not of the kind regarded by the Government as very serious. The Tribunal accepts that Mr Whiston is no longer taking illicit drugs, even though his evidence was that he could have had access to such drugs while in gaol. As his more recent criminal conduct probably occurred to enable him to fund his drug addiction, the Tribunal believes the risk of recidivism is reduced and is probably no more than moderate. The Tribunal is also of the view that, having regard to the matters referred to above, the Australian community would be prepared to give Mr Whiston one more chance to live a law-abiding life in Australia. If he is forced to leave Australia the disruption to his immediate family members and the hardship to them would be significant, as we have said above.
57. After balancing all of the relevant considerations in the Direction, the Tribunal has decided, albeit with considerable hesitation, that it is appropriate in the present case to exercise the discretion under s 501(2) of the Act in Mr Whiston’s favour.
58. The Tribunal remains concerned that Mr Whiston has had numerous opportunities and has been given considerable support to overcome his addiction and stop offending. He must be made to understand clearly that courts and other authorities will not keep giving him more chances if he does not mend his ways. The Tribunal suggests that he should be formally warned that, if he commits any future offence, a fresh assessment will be made with a view to considering cancelling his visa. Whilst the Tribunal cannot as a matter of law fetter the exercise of discretion by a future decision-maker, we should observe that in view of the nature and extent of the applicant’s criminal record and the concerns the Tribunal has expressed in the present matter, the applicant should not expect to receive a favourable exercise of discretion if he should ever offend again. The Tribunal suggests that, when his advisers inform him of the outcome of these proceedings, they should draw this comment to his particular attention, and emphasise its significance.
Decision
59. The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration and directs that:
(a)the discretion under s 501(2) not to cancel the applicant’s visa be exercised in favour of the applicant; and
(b)the applicant be formally warned that, if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.
I certify that the 59 preceding paragraphs are
a true copy of the reasons for the decision herein of
Deputy President D G Jarvis and Senior Member DunneSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 28 and 29 July 2005
Date of Decision 29 August 2005
Counsel for the Applicant Ms K Richards
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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