Whiu and Minister for Immigration and Citizenship
[2008] AATA 577
•4 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1667
GENERAL ADMINISTRATIVE DIVISION ) Re AARON WHIU Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member M D Allen Date4 July 2008
PlaceSydney
Decision The decision under review is SET ASIDE.
..................[sgd].......................
M D Allen Senior Member
CATCHWORDS
VISA CANCELLATION – visaex – character grounds – criminal conduct – residual discretion not to cancel visa – tribunal must apply ministerial direction in exercising this discretion – tribunal must have regard to: three primary considerations (i) protection of australian community (ii) expectation of australian community (iii) best interests the child; and other considerations – tribunal must also regard weight placed by minister on primary considerations – relevance of deterrence and rehabilitation – decision under review set aside
LEGISLATION
Migration Act 1958 subsections 499(1), 499(2A) 501(2), 501(6) and 501(7)
Australian Citizenship Act 2007 subsection 24(6)
REASONS FOR DECISION
4 July 2008 Senior Member M D Allen 1. By application made the 17th of April 2008 the Applicant sought review of a decision by a Delegate of Respondent to cancel the visa which permitted him to reside in Australia.
2. The visa cancellation was made on the ground that the Applicant did not pass the character test provided by subsection 501(2) of the Migration Act 1958 in that he had a substantial criminal record.
3. There was no dispute in this matter that the Applicant did not meet the character test. A substantial criminal record is defined in paragraph 501(7)(c) of the MA as existing when a person has been sentenced to a term of imprisonment of 12 months or more. The Applicant in this matter has the following convictions and sentences:
(i)Robbery whilst armed with Offensive Weapon Caused Wounding (GBH-SI) and sentenced to nine years imprisonment with a five year non-parole period;
(ii)Aggravated Robbery, for which he was sentenced to five years imprisonment;
(iii)Aggravated Break and Enter and Commits Serious Indictable Offence, sentenced to five years imprisonment; and
(iv)Armed Robbery, sentenced to five years imprisonment
all of the above sentences to commence on the 5th January 2002. Taken into account when sentencing in relation to the above offences were the following other offences:
1. Robbery
2. Steal Property in Dwelling - House
3. Supply prohibited drug.
4. Subsequent to the above mentioned sentences the Applicant was again convicted in 2007 of offences that occurred earlier in time to the above matters. He was convicted of two counts of Assault Occasioning Actual Bodily Harm and sentenced to 14 months imprisonment on the first count and two years and four months on the second count, both having non-parole periods of 6 months.
5. The convictions in 2007 were especially serious in that they related to assaults committed by the Applicant upon his then “girlfriend”.
6. The Respondent and hence this Tribunal has a discretion not to cancel a visa. In exercising this discretion the Tribunal must apply the Direction No 21 signed by the Respondent. Such Direction being created pursuant to section 499 of the MA. Section 499 states:
“(1)
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A)
A person or body must comply with a direction under subsection (1).
…”
7. As the Applicant does not pass the character test the discretion not to cancel a visa contained in ss 501(2) MA is enlivened. In exercising this discretion, the Ministerial Direction discussed above must be applied. That direction states that Tribunal must have regard to the three “Primary Considerations” and a number of other considerations. The Tribunal must also have regard to the importance or weight placed by the Minister on the Primary Considerations (see paragraph 2.2 of Direction 21).
8. The three Primary Considerations are:
(a) the protection of the Australian community;
(b) the expectation of the Australian community; and
(c) the best interests of the child.
9. In this matter there are no reasons to consider the interests of any children. The Applicant has no children of his own and although he has telephone contact with his sister’s children from gaol there was no evidence that his absence from Australia would in any way effect any relationship with those children.
10. Of the so called “other considerations” referred to in the Direction the only one which has any relevance in these proceedings is that referred to in paragraph 2.17(h) of the Direction namely evidence of rehabilitation and recent good conduct.
11. The offences committed by the Applicant were serious and condign punishment was imposed. As stated above, to my mind that the assaults committed by the Applicant in 2001 were against a female renders them particularly grave, and normally the Australian community could expect that a person who has demonstrated a propensity to violence as has this Applicant, would have their residence visa cancelled. Similar comments apply to the protection of the Australian community.
12. The real question in this matter is whether the Applicant by his behaviour has evidenced a commitment to reform sufficient to exercise the discretion not to cancel in his favour.
13. In considering this question I start by taking into account his family circumstances. Born in New Zealand the Applicant will be 29 in August 2008. His early upbringing was disruptive. His parents were constantly arguing and when he was 12 years of age, his mother left the marriage. His father immediately moved his “girlfriend” into the house and she was resented by both the Applicant and his sister. The Applicant was subjected to both physical and mental abuse by his father.
14. When the Applicant was 15 his father abandoned him and his sister and moved to Australia with his “girlfriend”. The sister was sent to relatives in Auckland, but the Applicant was simply abandoned in the family farm house outside a small town in the North Island of New Zaeland and left to fend for himself. At age 15 he was ineligible for any social welfare benefits and lived on the charity of relatives and neighbours.
15. Subsequently it appears that the Applicant’s mother took him into her custody. A pre-sentence report states that the Applicant left school at 13, but states that he was unemployed until he moved to Australia at age 19 at the urging of his father. His father found him work in the excavation industry.
16. The Applicant had used cannabis since age 12. When he commenced work in Australia he was introduced to amphetamines. In sentencing remarks on 8 August 2003, Morgan DCJ said referring to a pre-sentence report:
“He said he is often violent when under the influence of amphetamines, becomes moody and aggressive when withdrawing from the drug.”
17. At some time in 2001 the Applicant was diagnosed with attention deficit hyperactivity disorder and prescribed methylphenidate (trade name Ritalin). It was the Applicant’s belief that this medication was having an adverse effect upon him and whilst in prison he ceased medication. Reports from the Probation and Parole Service and Dr Ellis, Psychiatrist, indicate that ceasing medication has had no adverse effect upon the Applicant.
18. The Applicant’s criminal history in Australia began in 1999 with convictions for drug possession and administration. In 2000 and 2001 he was convicted three times in the Local Court for assault, the last offence resulting in a three years good behaviour bond. As pointed out by Morgan DCJ “The records reveal that he was referred to the anger management program on two occasions and each time he failed to attend. Concerns were held whilst on supervision in relation to his violent behaviour to his family and his mental health status.”
19. In his evidence before me the Applicant acknowledged his anger particularly towards his father who he said at that time he was accusing of abandoning him. He stated that the amphetamines he was taking made him “extremely violent, on edge and ready to explode”.
20. After being arrested for the robbery offences the Applicant was in custody from 23 September 2001 until 21 January 2003 when he was granted bail. He was then sentenced on 8 August 2003.
21. The Applicant states that having been in gaol has changed him. Originally he was resentful and this is shown by the incidents of breaches of gaol discipline in 2002 and 2003. Since that time however he has improved his behaviour and recognizes the enormity of his offences.
22. Whilst in gaol the Applicant has undertaken courses in anger management, drug and alcohol abuse and general education. The courses in anger management have apparently been successful as when the Applicant whilst at Goulbourn gaol was attacked by another prisoner and stabbed with a screwdriver, he did not retaliate but simply reported the attack to correctional staff.
23. That there has been a change in the Applicant’s attitudes was evidenced both by the Applicant’s sister and a gaol Chaplain, the Reverend Baines.
24. Reverend Baines in a letter dated 5 June 2008 stated:
“There is no doubt that Aaron has been chastened by his interaction with the judicial and jail system. While some would view involvement in serious crime as a badge of honour, there is no doubt Aaron views it as a badge of shame. I did not know him when he was involved in crime, but I cannot but imagine he is a much more mature individual today. Most inmates adjust to and become quite comfortable in jail. Aaron acts as if he doesn’t belong, not because he does not believe he should be punished but because he does not wish to be part of the culture that views jail as a normal part of the life of a criminal.”
In evidence Reverend Baines stated that the Applicant “hates being in jail”.
25. Mrs Ruby Thornton is the Applicant’s younger sister and appears to have taken an abiding interest in his welfare. The Applicant keeps in regular telephone contact with her from gaol and before she and her husband moved to Queensland she regularly visited the Applicant in gaol. She stated that upon his arrest she did not speak to the Applicant for 1 and ½ years as she wanted him to realize the consequences of his behaviour. When she did speak to him prior to his being granted bail, she noticed a distinct change in his attitude.
26. Having been granted bail the Applicant resided with Mrs Thornton and her husband for some time and she again stated that there was an appreciable difference in the Applicant’s attitude.
27. Although Mrs Thornton did seem to overemphasize the difficulties facing the Applicant , should he be returned to New Zealand, she did impress me as a sensible woman who although, like the Applicant, having had a very hard upbringing has been able by the strength of her own character to move beyond that. She has been and still is very supportive of her brother and I am convinced she will be able to assert a positive influence on the Applicant. Her commitment to the Applicant is demonstrated by her proposal to move to New Zealand to support her brother should his visa be cancelled.
28. That the Applicant has taken steps to rehabilitate himself was the opinion of the compiler of a report for the NSW Probation and Parole Service. Generally speaking the pre-release report pertaining to the Applicant is positive albeit with some reservations but does recommend parole. The summary of the report reads inter alia:
“During Mr Whiu’s total incarceration to date, he has been supported by his family particularly his younger sister whom he has been close with throughout his life, notwithstanding the particularly turbulent period he suffered early in his life in New Zealand. It is Mr Whiu’s intention to reside with his father’s de facto partner upon release, which has been approved by this Service. It is apparent that Mr Whiu will benefit from strong family support upon release in Australia, should he be successful in his appeal with the Department of Immigration and Citizenship (DIAC) against the cancellation of his visa…
By Mr Whiu’s own admission, he struggled early in his somewhat lengthy incarceration in managing his aggression and tendency towards violent behaviour. This tends to be reflected with regards to his institutional misconduct charges. Despite this, Mr Whiu has utilised his time in custody in an efficient manner by undertaking numerous programs to assist in addressing his offending behaviour. This has related to work in areas of alcohol and other drug use, managing anger and other personal issues such as dealing with stress. Consequently, Mr Whiu reported benefiting from accessing services whereby he has been able to draw inside into his identified violent behaviour and learn easy to better manage anger. Mr Whiu regarded his clear record in relation to drug use whilst in custody to his personal acknowledgement of the negative impact that the use substances had on him in the past.”
29. The pre-release report also notes that the Applicant has an offer of employment upon discharge from gaol.
30. A significant negative in that report is that in accordance with the LSI–R Assessments Instrument the Applicant is at medium to high risk of re offending.
31. The LSI-R Assessment Instrument was explained by Dr Ellis. It is an actuarial assessment of risk. Although originally formulated in Canada, it is routinely used in Australia. The assessment being actuarial looks at group factors and one must have regard to the individual.
32. In the opinion of Dr Ellis, the Applicant has a number of historical factors in his case that are statistically associated with risk of re offending, namely:
“He has a history of serious previous violence and this violence occurred while he was relatively young. He has a history of serious instability and conflict in relationships and previous employment problems. He has a history of serious substance use problems. There is a history of serious early maladjustment. There has been a history of infractions whilst serving community supervision.”
33. Dr Ellis did state that support from the Applicant’s family will mitigate against re-offending and that employment does reduce substance abuse. He concluded his report by stating: “If he is able to maintain his absence from substances and engagement with treatment services and supervising parole service, this would likely contribute to his risk (of re offending) being reduced.”
34. A factor which does disturb me regarding the Applicant’s family support is that his father is also incarcerated (apparently they currently share a cell) for conspiracy to manufacture amphetamines. The Applicant’s evidence is that his father has also renounced drugs but I regard the father’s involvement in both the use and manufacture of drugs as a risk factor mitigating against the Applicant’s not re- offending. This is particularly so as the Applicant apparently intends to reside with his father’s current partner when he is released.
35. Statistically the Applicant is at a medium to high risk of re-offending. To this must be added the unknown factor of his father’s behaviour when he is released from gaol. On the other hand the Applicant has support from his family, and it would appear his mother has also been visiting him in gaol. He has a job to go to and a place in which to reside immediately upon discharge. His pre-release report from the probation and parole service is generally positive.
36. Dr Ellis who in evidence stated that he tended to take more account of actions than what people said stated in his report:
“He agreed that he had previous problems with substance dependence and violence within relationships. He was able to describe some strategies to deal with these in a community environment and reported that he would accept whatever advice was given to him about further strategies to assist him in managing these problems. He expressed remorse for his previous criminal offences and described likely effects on the victims. He also pointed out the significant effects on his own life and the difficulties that he has faced whilst in prison.”
37. Pursuant to subsection 24(6) of the Australian Citizenship Act 2007 the Applicant cannot apply for Australian citizenship whilst he is subject to release on parole order. This parole order will expire on 4 January 2012. If the Applicant offends within this period, he will be in danger of having his parole revoked and if the offence brings a sentence of over 12 months, then he will have brought himself within the provisions of subsections 501(2),(6) and (7) MA 1958.
38. Although I recognise that the offences committed by the Applicant are of such severity that both the protection and expectations of the Australian community call for his deportation, and that he is statistically at a medium to high risk of re offending I am persuaded that credit should be given for his efforts to rehabilitate himself and therefore I exercise my discretion and set aside the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: [sgd] [sgd] .....................................................................................
Mwela Kapapa, AssociateDate/s of Hearing 19 – 20 June 2008
Date of Decision 4 July 2008
Counsel for the Applicant Mr L Karp
Solicitor for the Applicant Legal Aid Commission
Solicitor for the Respondent Clayton Utz Lawyers
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