Williams and Minister for Immigration and Multicultural Affairs
[2007] AATA 1012
•16 January 2007
DECISION AND REASONS FOR DECISION [2007] AATA 1012
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1479
GENERAL ADMINISTRATIVE DIVISION ) Re John Tudor Williams Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date16 January 2007
PlaceSydney
Decision The decision under review should be set aside and the matter remitted to the respondent on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa. [SGD]
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation – visa cancelled on the grounds of substantial criminal record including possession/supply/manufacture prohibited drugs – necessary to consider protection and expectations of the Australian community – necessary to weigh up seriousness of offences – decision set aside.
Migration Act 1958 ss 499, 501, 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No. 81
REASONS FOR DECISION
16 January 2007 Professor GD Walker, Deputy President Summary
1. The applicant, John Tudor Williams, aged 58, a citizen of the United Kingdom or Ireland or both, first arrived in Australia on 8 June 1955. He currently holds an absorbed person visa and a transitional (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided on 26 October 2006 to cancel Mr Williams’s visas on the ground that he does not pass the character test because of his substantial criminal record including supplying a prohibited drug, conspiring to manufacture a prohibited drug and supplying a commercial quantity of a prohibited drug. That is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant concedes that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having been sentenced to terms of imprisonment totalling 15 years. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visas.
Background
4. Mr Williams was born in Ireland on 3 November 1948 and is aged 58. He is probably both an Irish and United Kingdom citizen, but in view of the decision I have reached on the merits it is not necessary to make a definite finding on that point. He first arrived in Australia on 8 June 1955 at the age of six with his parents and two brothers. He is the holder of an absorbed person visa under the doctrine that holds that a person who arrives in Australia as an immigrant does not remain an immigrant for all time but at some point is ‘absorbed’ into the community and ceases to be an immigrant. He also holds a transitional (permanent) visa. He has a daughter Laura Williams aged 25, who is the only child of Mr Williams and his wife Maureen Williams, from whom he has been separated from since approximately 1990.
5. Between 1969 and 2000 Mr Williams committed and was convicted of a series of offences (G12 pp87-105). These offences include riotous behaviour, indecent language, motor vehicle-related offences including drink driving and driving in a manner dangerous, breach of recognizance, offensive behaviour, resisting arrest, assault, goods in custody, possession of a firearm, possession of drugs, supply prohibited drugs, possession of unlicensed firearms, and possession of ammunition, for which he received fines and terms of imprisonment.
6. Mr Williams’s most serious offences have occurred since 1989 as follows:
Court/date of Sentence
Offence
Sentence
Penrith District Court, 19/12/1991
1. Supply prohibited drug
1. Sentenced to total imprisonment for 3 years 4 months commencing 19 December 1991 (non parole period of 2 years 6 months)
Sydney District Court, 8/3/2002
1. Manufacture prohibited drug, commercial quantity
1. Sentenced to total imprisonment for 4 years commencing 29/3/2000 (non-parole period 3 years)
Campbelltown District Court, 14/6/2002
1. Supply prohibited drug
2. Supply prohibited drug
1. Sentenced to imprisonment for 8 years commencing 30/12/1999 concluding 29/12/2007, non-parole period with conditions 6 years concluding 29/12/2005. Release subject to supervision for drug problem and to undergo any urine analysis that may be required.
2. Sentenced to imprisonment for fixed term six months commencing 30 December 1999.
Penrith Local Court,
22/11/2002
1. Possess unregistered firearm - prohibited firearm
1. Imprisonment for 18 months commencement date backdated to 29/3/2000.
7. On 22 September 2005 an officer of the then Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Williams that the Minister or his delegate was considering cancelling his transitional (permanent) visa on the grounds of his substantial criminal record and past and present criminal conduct, taking into consideration his criminal history and Sentence Administration Report from the Department of Corrective Services, and inviting him to comment by 17 October 2005 (G9 p65).
8. On 4 November 2005 the applicant’s solicitor, Lillian Ajuria of Kessels Goddard & Ajuria, made written submissions to the department (G10), in which she conceded that the applicant does not pass the character test as defined in s 501(6) of the Migration Act because of his long criminal history. However, she submitted that after six years of incarceration her client had been rehabilitated, he had accepted responsibility for his actions, had completed drug and alcohol courses while in prison, there were no reports of drug and alcohol abuse during his period of incarceration, and he had held three jobs during this period and had shown a positive work attitude. Further, he had a strong network of family and friends to support him once he was released from prison, including his estranged wife. His pre-release report indicated a medium to low risk of recidivism, and he had been offered a full-time position upon his release. It was noted that Mr Williams had retired from his association with the Bandidos Motorcycle Club and was aware that this was one of his parole conditions, and that he had had a positive change in his attitude to life and that the likelihood of his re-offending would be low. Mr Williams had also indicated that he was ‘terrified’ of being returned to a country where he has no family or friends or support network.
9. Ms Ajuria also submitted that given the length of time Mr Williams had lived in Australia that the Australian community would not expect that he be removed, particularly as he has an elderly 83 year old mother in Australia and he would be unlikely to see her again. She further submitted that it would affect Mr Williams’s daughter Laura and his wife with whom he has a close relationship despite their separation. He has no ties or family in the United Kingdom, no “real” skills and would find it impossible to find employment, given his age. She submitted that it would be appropriate for the department to exercise its discretion not to cancel his visa (G pp68-76).
10. Ms Ajuria lodged with her submission a statement by the applicant, a pre-release report prepared by the Parole Board dated 6 October 2005 (G13 p106), a copy of Mr Williams’s Department of Corrective Services file (G14 p112), certificates for courses undertaken whilst in prison (G15 p134), a letter of offer of employment from Mr Kulakowski, managing director of Smithfield Auctions (G16 p137), statutory declarations by his separated wife Maureen Williams (G18 p154) and daughter Laura Williams (G20 p160), and letters of support from his mother, two brothers, sister, a niece, his ex-wife’s father and sister, two friends and his daughter’s then de facto partner.
11. On 2 March 2006, an absorbed person determination was made by the director of the Emergent Legal Issues Section of the department that the applicant meets the objective criteria for the holder of an absorbed person visa, which supported the view that he ceased to be an immigrant before 2 April 1984 (G6 p30).
12. By letter dated 18 April 2006 (Exhibit A), a delegate of the department notified Mr Williams care of his representative that the department considered he was the holder of both a transitional (permanent) visa and an absorbed person visa and that if the Minister or his delegate decided to cancel his absorbed person visa, his transitional (permanent) visa would also be taken to be cancelled. The letter then reiterated that the Minister or his delegate was considering cancellation on the ground that he did not pass the character test and inviting him to make any further comments by 9 May 2006.
13. On 21 July 2006, an officer of the department advised the applicant’s representative that cancellation of his visas was still being considered and invited Mr Williams to make further submissions by 15 August 2006. The letter also advised that the department would be taking into consideration, in addition to his record of convictions, sentences and appeals, the sentencing remarks of 14 June 2002, his updated criminal history from the Australian Federal Police, updated record of convictions and the information provided in his responses of 22 September 2005 and 18 April 2006.
14. Ms Ajuria responded by letter dated 14 August 2006 (G11) sending to the department a statutory declaration of Mr Williams, copy of his first aid certificate, OH& S “green card”, further copy of Mr Kulakowski’s offer of employment, letters from the Roads and Traffic Authority listing the applicant’s driver’s licence and motor vehicle registration, information regarding his work activities and further letters of support from Laura Williams, Maureen Williams and his mother. In his statutory declaration dated 4 August 2006 (G pp84-86), the applicant said:
I am still terrified of being deported. This is my biggest fear. I will be 58 this year and the thought of going to a foreign country on my own with no relatives or other contacts terrifies me. I truly hope you can realise how much I have changed and I will continue to work hard and make every effort to integrate in society and do the right thing. I want to contribute to Australian society and not be a burden as I was in the past.
15. On 23 October 2006, a delegate of the respondent, after taking into consideration the applicant’s submissions made on 4 November 2005 and 14 August 2006, decided to cancel Mr Williams’s transitional (permanent) visa and absorbed person visa taking into account his substantial criminal record and past and present criminal conduct, the nature of his offences and its effect on the community, the continuing ‘moderate’ risk that he would re-offend, the deterrent effect of cancelling his visa, and the effects of cancellation on his family and the applicant personally. The decision was personally delivered to Mr Williams by letter dated 26 October 2006. On 27 October 2006 the applicant lodged an application with the tribunal for a review of that decision.
16. At the hearing, the applicant was represented by Ron Kessels, solicitor, of Kessels Goddard & Ajuria, and the respondent was represented by Kimberley Rose, of Phillips Fox solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence presented at the hearing. Oral evidence was given by Mr Williams, Associate Professor Susan Hayes, Maureen Williams, Laura Williams and Peter Williams.
Relevant Law and Policy
17. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(ii). Section 501(6)(a) and (c) provide:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character.
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
18. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) ‘does not empower the Minister to give directions that would be inconsistent with this Act or the regulations’, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal) such a direction has the force of law.
19. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it ‘provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act’. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence
20. At the hearing the applicant adopted his undated statement (G pp79-83), his statement dated 4 August 2006 (G pp84-86) and his later undated statement (Exhibit A3). The effect of his earlier statements has been summarised above, but in his statement (Exhibit A3) and in his oral evidence he stressed his overwhelming fear at being removed to a strange country, whether Ireland or the United Kingdom, and being separated from his family and friends. He acknowledged that he has no one but himself to blame for the situation but claims that he has completely changed inside and that the old life he led is gone. He would not even litter today because he is so petrified of breaking the law and returning to jail.
21. If allowed to remain in Australia he would plan to return to live with his wife Maureen, to whom he has once again become extremely close. He would see his daughter Laura as much as he could, visit his 83-year old mother (actually his step-mother) to help look after her, and continue to get his life back on track. He has re-established his relationship with his brother Peter and they have spoken together many times. Peter has offered to give him work while he gets on his feet, or for as long as he needs. He would continue with his study to obtain his forklift license and believes that this would open up other work opportunities for him. The job offer with Smithfield Auction World is still open, but requires him to have a forklift license.
22. He said he has always thought of himself as Australian and had never understood the difference between Australian citizenship and permanent residence. He had voted in elections, although not all of them, and had applied to join the navy in 1968 but had failed the written examinations because of what he now knows to be his dyslexic condition. In 1981 he travelled to New Zealand for about three days, but that was at a time when an Australian did not require a passport to travel to that country. He had returned early from the trip because the law was about to change and he would have needed a passport, which he did not have. There was evidence that he had given his nationality as “English” on his incoming passenger card when he returned from that trip, but he said he did not recall what he had written on the card. He said it was not until about 2005 when he tried to obtain a tax file number that a prison welfare officer told him that he was not legally Australian and that the immigration department would need to investigate his situation. His evidence on this point is not altogether satisfactory, but it must be borne in mind that there was some legal ambiguity about Australian nationality until 1970. At the time the applicant applied to join the navy in 1968 Australians were still British subjects. There was a strong, though not universally held, opinion that while our citizenship was Australian, our nationality was British. A United Kingdom natural was under no restrictions in this country and indeed some such non-citizens served as Australian ambassadors abroad. Consequently, I do not attach great weight to this aspect of his evidence.
23. The applicant joined the Hell’s Angels in 1966 and purchased his first Harley-Davidson motorcycle in 1974. By 1986 he was deeply involved with the motorcycle culture, was drinking heavily, using amphetamines and often not returning home for days on end. His marriage broke down in 1991 and at about that time he joined the Bandidos outlaw motorcycle gang. In 1989, shortly before joining the Bandidos, he was involved with that gang and was asked if he would become involved in drug supplying for money. He agreed, “and that was really the beginning of the end for me. In late 1991 I went to prison for two and a half years”.
24. After his release from prison in 1994, he moved in with his parents for a while and tried to stay out of trouble, but was still in the Bandidos and was not really committed to changing. He continued along that path until he was sentenced to six years’ imprisonment. At that time he was aged 54 and suddenly realised he that he had wasted his life.
It shocked me that I had thrown away my life and had lost my wife and child for a gang of criminals. I decided to change and have been doing so ever since.
On his release in 2005 he returned to his family and tried to get on with his life as best he could. He stressed that he wanted nothing to do with his former criminal life and while he realises that the tribunal has heard such assurances before from others, but stresses that it is the truth.
25. The applicant tendered a psychological assessment (Exhibit A4) prepared by Associate Professor Susan Hayes, head of the Centre for Behavioural Sciences in the Department of Medicine at the University of Sydney. After summarising his criminal and personal history, she noted that after he was sentence to eight years’ imprisonment commencing on 30 December 1999, he had been an exemplary prisoner. Corrective Services case notes from 2001 stated that he was ‘doing a brilliant job as sweeper’ and that he had ‘performed to the highest standard of cleanliness as the sweeper in unit 1A’. He had initiated doing all the inmate’s clothes washing to ensure that there were not fights about whose washing was to be done, and had helped in issuing meals and ensured that each inmate obtained his fair and equal share. His efforts according to Corrective Services had assisted in the operation of the unit.
26. Subsequent case notes were equally positive. In 2005 he was employed as a leading hand in the ground maintenance team five days a week and was described as an excellent worker with an excellent attitude to his work. As part of the employment that he obtained during imprisonment he worked in the reception section at Parklea, which is a position of some trust, and was in the outside gang at John Morony for the last two years of the sentence.
27. After his release he lived in the community until 26 October 2006, working for the dole, attempting to find work, endeavouring to obtain a forklift license and visiting his step-mother to assist her with chores around the house. The reports about his work for the dole activities are very positive.
28. The applicant had told Professor Hayes that his daughter had been “very cross” with him because of his lifestyle and jail sentences. He said he had promised her that he would never do anything like that again, and says that he has kept his promises. He was very emotional about his family and was afraid to lose them, saying that would be the worst thing that could ever happen to him. If he was sent away and could never see them again, he says he would be devastated.
29. Professor Hayes administered a brief intelligence test and concluded that the applicant is in the average range of ability, but that he has a specific learning difficulty, dyslexia, that has affected his ability to learn to read and write. That was having a continuing affect on him. For example, in trying to obtain his forklift license he found it difficult to read and comprehend the manual, but passed the practical tests without difficulty. A similar pattern had occurred when he attempted an electrical apprenticeship after leaving school.
30. On the basis of a Personality Assessment Inventory test, and of his clinical history, Professor Hayes diagnosed the applicant as suffering from anxiety disorder and depression. He had a long history of panic attacks since high school and repeatedly failed examinations because he became very nervous. His feelings of terror at being deported also reflected anxiety disorder. He has experienced constant panic anxiety attacks during the time he has been in Villawood, exacerbated by the uncertainty of his future and the fear of losing his family. He also displays the symptoms of severe depression. Professor Hayes thought he would be greatly at risk for grave psychological outcomes if he were to be removed from Australia, because of the disorders of severe panic anxiety and depression.
31. The assessment noted the corrective services reports showing that the applicant has made major advances towards rehabilitation. He has abstained from drugs and gambling throughout the time he was in prison, and subsequently when he was in the community for 10 months. The records concerning his work and conduct in prison are exemplary. He attended appropriate courses and gained insights into his own functioning. He has been offered employment in the community, but has been unable to take it up because he had not succeeded in obtaining his forklift license because of his dyslexia and panic anxiety attacks. The assessment expressed confidence, however, that he will be able to obtain some form of employment in the future.
32. Also noted was the report by parole officer Ms Johnson indicating that he does not have an offending pattern associated with long-term drug use. While that report considered that there is a moderate risk that the applicant would re-offend, Professor Hayes thought that was at odds with other opinions, including those of the prison chaplain and the Probation and Parole report, which referred to a low to moderate risk. Ms Johnson’s report did indicate, however, that the applicant had “showed clear insight into the consequences of further offending”, that he is clearly aware of the motivation behind offending behaviour and has accepted responsibility for his role in the commission of the offences.
33. Professor Hayes observed that the applicant has undergone a significant change, in that he has given up drugs, has achieved insight into his offending behaviour, has shunned his former peer group of bikers and has settled into a stable family life, and has established a long pattern of non-offending behaviour and continuing employment (counting the period of imprisonment). His attitude and personality had changed, and all of the reports consistently indicate that. He does not mix with an offender sub-group and is highly motivated not to do so because of the promises he has made to his family. His panic anxiety disorder is not likely to increase his chances of re-offending, and indeed at present it means that he goes out into the community as little as possible. He now understood the impact of illicit drugs on users, especially since himself becoming abstinent. He has a close relationship with his separated wife and his 25-year old daughter, an extremely positive factor in terms of preventing him from re-offending. On the other hand, the thought of losing his family after many years of distance is causing him great distress. Removal could put him at serious risk of self-harm or suicide.
34. While acknowledging that the prediction of re-offending is a fairly unreliable area, Professor Hayes considered that the applicant has a very low risk of recidivism and is confident that he would not pose a threat to the Australian community if allowed to remain here.
35. In cross-examination Professor Hayes stressed that she was very confident about the applicant’s rehabilitation and very low risk or recidivism because of the long period of positive or exemplary behaviour. She noted the dramatic change that had been observed in him by ‘hard-headed prison officers’ and that he had led a very sedate life during the 10 months he was at liberty. During that time he was also endeavouring to acquire new skills. She has seldom been as optimistic about the rehabilitation of an offender as in this case, perhaps only three or four times in all during her 25-year career as a forensic psychologist.
36. In her written statements (G pp154-156, 157-158 and Exhibit A5)), Mrs Maureen Williams, the applicant’s separated wife, outlined the history of their marriage and of the applicant’s descent into criminal behaviour through his association with the biker sub-culture. She related how she and their daughter, Laura, had visited him regularly over the past six years while incarcerated and spoken to him regularly by telephone. She had seen him look at his life with regret and hope for the future to turn it around and change it. This was the first time that he had been so determined to ensure that he put his life back on the right track. She believes his age, his values, his relationship with Laura, his time in the jail and the importance of his family have all strengthened his determination not to become involved in any criminal activities again. She believes his time in jail had actually brought about the positive change in his attitude. He had tried very hard in prison by willingly participating in all courses offered to him and by working ensuring that he was able to hold a job. Mrs Williams is a youth worker with the Department of Community Services and has had training in welfare and drug and alcohol training. She believes her professional background has given her the ability to assist with his rehabilitation. At the same time, Laura is working as a childcare worker and has also had training in welfare, which had also influenced the applicant.
37. After his release from prison, the applicant had shared her home at Glenbrook in a strong and friendly, but not intimate, relationship. During the 10 months he was at liberty, he worked for the Salvation Army as part of his work for the dole commitments and had actively sought work and new work qualifications. He had worked around the house and shared household expenses. They had lived like a family and he had no contact whatever with the biker environment or with drugs.
38. At the hearing Mrs Williams said she now wanted to be fully reconciled with him because there had been such a change in him that she would not have believed it possible. He was a different man and she wanted to help so as to give him a chance. They had never divorced and had always remained friendly. There had never been acrimony between them and their daughter was a common bond between them. If he were released the plan was that he would return to live with her in the Glenbrook house. The change in him was so marked that she believed they could become a couple again.
39. The applicant’s daughter Laura Williams adopted her written statements (G pp160-161, Exhibit A6). In spite of his criminal behaviour outside the home, he had always been a very loving and supporting father in his own way, she said. When he was last sentenced to prison, she was angry and frightened, but at the same time secretly glad because it meant that he was taken away from the gang and forced to deal with what he had become. She told him at that time that the two of them would be finished if he ever did it again and she would have nothing more to do with him. From the time that he went to jail, however, she saw him become a completely different person and knew that he wanted to change and that he would do so and return to them. She was very proud of the way he handled his time in prison. Not once did he blame anyone else for his situation, in fact she always felt that in some ways he took the blame for much of what had happened, when he was more of a follower than a leader.
40. Although she visited him frequently in prison, they developed an even closer bond after he was released. He repeatedly told her that he regretted the way he had endangered the lives of others and that she and her mother were the most important things in his life, and all that he now wanted was to lead a quiet life with them. After his release from prison he was living with her mother close to where Laura herself lived, so that she saw him daily. He helped her around the house, as he helped her mother. She feels that if he is allowed to stay in Australia their relationship will continue to grow because her mother can see the positive changes in him. For the first time for a long time she feels that the family is able to be together and it is reassuring to know that he is there. All that would be taken away if he were not allowed to remain in Australia.
41. In his oral evidence Mr Peter Williams, the applicant’s brother, adopted his written statements (G p181 and A7) which were supportive and to a similar effect as those of the applicant’s wife and daughter. For present purposes the most relevant part of his evidence is that he owns a property development business in which he employs a number of workers, including one of his sons. The business also operates a factory for producing some of the components used in his construction projects. He stated that for many years the applicant did not change as a result of his sentences and that for that reason Mr Peter Williams would not allow him to have any contact with his sons because he did not want them to be influenced. During the applicant’s last term in custody, however, he had noticed a radical change in him. Whereas previously he had lived only for himself, now he wanted to be with his family and had completely turned his life around.
42. Mr Peter Williams said he would offer the applicant paid work in the business. Despite his leg injury and partial hearing loss, there were many tasks on the construction sites and in the factory that he could perform, such as helping with formwork. The business also operated a Bobcat, which he could learn to operate on the company’s own sites without jeopardising the company’s insurance. The company would also help him to obtain his forklift and Bobcat licenses. If he needed to rest more frequently than other workers because of his game leg, he could do so. Once he had obtained some licenses he would no longer have to stay with the business, but could do so if he wished.
Application of the Law and Findings of Fact
43. As was stated above, the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Williams has a very lengthy criminal record including a sentence on 19 December 1991 of three years and four months imprisonment on a charge of supplying a prohibited drug (methyl amphetamine), a sentence on 8 March 2002 of four years imprisonment for conspiring to manufacture a prohibited drug (methyl amphetamine), and a further sentence on 14 June 2002 of eight years imprisonment on charges of supplying a commercial quantity of a prohibited drug (LSD).
44. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Williams’s visas. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
45. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
46. Examples of what the Government views as serious offences are set out in paragraph 2.6. This includes, in subparagraphs (a) the production, distribution, possession, commercial dealing, or selling of illicit drugs, (b) organised criminal activities, (f) assault or any other form of violence against persons, and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community. Paragraph 2.7(b) also states that it is the Government’s view that the sentence imposed for the crime is also an indication of the seriousness of the offender’s conduct against the community and that decision-makers should have regard to the repugnancy of the crime and that crimes involving violence are especially repugnant to the community.
47. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
48. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case the applicant was convicted of three very serious drug offences, supplying a prohibited drug, conspiring to manufacture a prohibited drug and supplying a commercial quantity of a commercial drug (methyl amphetamine). All these offences are considered as very serious by the government (Direction No 21 paragraph 2.6). These offences were committed in the context of his association with the Bandidos motorcycle club. He supplied the drugs to other club members but not to outsiders.
49. He also has other convictions recorded against him, including assault, which the government also views as very serious. In his sentencing remarks of 14 June 2002, Judge Coorey of the New South Wales District Court criminal jurisdiction commented that the applicant had a “significant criminal record” (G p142).
50. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
· persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
· the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
· offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;
…
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; and …
51. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;
(b)the repugnancy of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
52. The respondent in her statement of facts and contentions (Exhibit R1) pointed out that the tribunal has in the past considered drug crimes of this nature to be very serious. Mr Kessels very properly conceded that the applicant has “an atrocious record”, which he developed as a result of his association with bikers with links to drugs and crime. The judge’s sentencing remarks did not show that he held a leadership position within the Bandidos and he sold drugs only within the gang group. Nevertheless his crimes were serious. There can be no dispute about that.
53. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10 of Direction No 21 states that it is the Government’s view that the person’s total criminal history is highly relevant to assessing the likelihood of an offence and the risk of recidivism. Mr Williams has a lengthy criminal history commencing in 1969 when he was aged 21 (his record sheet comprises 18 pages). It consists of convictions ranging from riotous behaviour, indecent language, motor vehicle-related offences, goods in custody, assault, possession of firearms (on 22 November 2002 he was sentenced to imprisonment for 18 months for possessing a prohibited firearm), possession of drugs, and the charges for which he received lengthy terms of imprisonment relating to supply of a prohibited drug, manufacture of a commercial quantity of a prohibited drug and possession of a prohibited drug.
54. The tribunal notes that the applicant’s representative submitted a Probation and Parole Service Pre Release Report dated 6 October 2005 to the department (G13 p106). This report details that the applicant committed the current drug-related offences purely for financial gain and that while he was a recreational drug user, he had never been a dependent user and that he realised the “stupidity” of his actions. In relation to his risk of re-offending, the report stated that the “LSI-R was administered returning a medium to low rating” (G p108). The report recommended that to manage the applicant’s risk to the community that he be referred to a drug and alcohol counsellor for further assessment and relapse prevention, to a psychologist for assistance with reintegrating into the community, he undertake urinalysis if necessary, and that his ex wife and employer monitor his progress. Parole was recommended.
55. In her statement of facts and contentions, the respondent contended that there is a real risk of recidivism, despite the views expressed in the Probation and Parole Service Pre-release Report and Professor Hayes.
56. The issue of what is meant by a real risk of recidivism in the context of deportation was discussed by the full court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198. The court held that a real risk of recidivism is one that is not far-fetched or fanciful and can include a low or minimal risk.
57. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81, another deportation case, the tribunal observed:
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism…. [E]ven if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
58. The respondent argued that, given the seriousness of drug-related offences, the tribunal should find that even a slight risk of re-offending can have great consequences for the Australian community and would warrant visa cancellation for its protection.
59. Mr Kessels submitted that one of the factors that differentiate the present case from many of those that come before the tribunal is the unusually strong evidence of rehabilitation. Something had clearly changed in his last period of incarceration. There were multiple reports, all of them positive, on the file showing that he was an exemplary prisoner, who worked hard, undertook all the courses available to him and was at one stage put to work in the reception area in tasks involving a substantial measure of trust. There had not been one breach of discipline or drug test failure recorded against him. After his release on parole in 2005 he had honoured all his parole conditions, had lived with his wife and had worked with the Salvation Army under the work for the dole project, receiving very favourable references. He remained the full 10 months with them, and undertook more work than he was required to. He had endeavoured to find work and had obtained his occupational health and safety green card. His brother had unreservedly offered him work of a kind that he is able to do, and which will help him to obtain further useful work qualifications. He would be returning to a stable home and his wife was genuinely re-evaluating her relationship with him because of the radical change in his attitudes and behaviour. Even if they were not to become a couple again, they would at the very least be close friends and living in a mutually considerate and supportive relationship. The evidence in fact shows that he changed because of the influence of his family, although it took a long time for the realisation of its importance to dawn on him.
60. It is not uncommon in such cases for applicants, supported by family members, to say that they have changed and will never re-offend. It is also quite common for an applicant to tender an optimistic psychological assessment. In this case, however, the assessment is particularly cogent and confident, because it can rely on proven and objective evidence of behavioural change over a long period. That period includes his last term of imprisonment because unfortunately, as is well known, it is not too difficult to obtain illicit drugs in prison. Yet the applicant has completely ceased contact with drugs, as is corroborated by the results of his tests while in prison. While he was using drugs, he said, he could not see the effect they had on users. But after he had ceased using drugs at the start of his last prison term, he had been able to observe the impact of drugs on the new prisoners coming in. In my view the risk of recidivism in this case is extremely low.
61. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. ‘Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa’ (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31).
62. While considerations of general deterrence in such a case would normally weigh against disturbing the reviewable decision, in this case I do not think the deterrent principle would be compromised by taking a favourable view of an applicant who produces solid, objective evidence of rehabilitation across the board. The applicant has shown by his conduct that he is a changed man, not only by his exemplary record in prison, but also by his behaviour during the 10 months he was at liberty in 2005, a period during which he did not think he was at risk of visa cancellation. He knew that the department was considering his case while he was in prison, but as he was released on parole he thought the question had been resolved in his favour. Yet he continued to act in a way that showed he was doing everything in his power to put his criminal past behind him. Considerations of general deterrence therefore do not weigh strongly in favour of visa cancellation in this instance.
Expectations of the Australian Community
63. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa:
Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia.
64. The respondent in her statement of facts and contentions submitted that in this case, the community would expect the applicant’s visa be cancelled because of the serious nature of the crimes, especially if there were any possibility of recidivism. Mr Kessels conceded that the applicant’s record, on its own, would warrant visa cancellation even though the applicant has been in Australia for 52 years. But this case was different because of the very low risk of recidivism, the evidence in relation to his dyslexia, anxiety and depression disorder. There was also unchallenged evidence that there was a risk of grave psychological outcomes for him if he were removed.
65. While community expectations in a case such as this would indeed normally strongly favour visa cancellation, I do not think they would be offended by a different result in a case such as this where there is objective evidence of comprehensive rehabilitation, a particularly strong family support structure and an assurance of the availability of productive work.
Best Interests of the Child
66. There is no child or children under the age of 18 years whose interests must be considered under this heading. The applicant has an adult daughter whose interests will be considered below.
Other Considerations
67. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and any compassionate circumstances.
68. The applicant has asked the tribunal to consider the interests of his formerly separated wife Maureen Williams, his daughter Laura aged 25 and his elderly step-mother who is in poor health. In her statutory declaration to the department (dated 31 October 2005), Mrs Williams did not discuss what possible effect the deportation of the applicant would have on her personally but stated that it would be punishing the applicant again and would destroy him and “would be punishing our daughter and the rest of the family” (including the applicant’s 83 year old mother) (G p155). Mrs Williams also stated that with her professional background in drug and alcohol counselling, this would give her the ability to assist the applicant with his rehabilitation. Laura Williams in her statutory declaration dated 31 October 2005 (G p160) stated that since her father’s imprisonment their relationship has grown even stronger and that her relationship with her father is very important to them both.
69. The tribunal was also asked by Mr Kessels to take into account that the applicant has been completely absorbed into the Australian community, having arrived here at the age of 6. He is now 58 and has lived in Australia for 52 years, during which time he married and raised a daughter and established a network of family and friends. He has no family or contacts in the United Kingdom or Ireland and, given his disabilities, age and record, scant prospects of obtaining work there. While pursuant to Direction No 21 the hardship to the applicant, his wife and daughter are secondary considerations, they do weigh against visa cancellation in this case.
70. On behalf of the minister Miss Rose presented a case that was in many respects a strong one. The tribunal, however, has had the advantage of more evidence than was available to the delegate who made the original decision, notably the particularly cogent and strongly-based psychological assessment by Associate Professor Hayes. In my view the case is an appropriate one for exercising the discretion in favour of the applicant. At the same time it should be made absolutely clear to the applicant that this is definitely his last chance and that any further law-breaking is likely to have dire consequences for him.
71. The decision under review should be set aside and the matter remitted to the respondent on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
[Sgd] BKS (Associate to DP Walker)
Date/s of Hearing 8 January 2007
Date of Decision 16 January 2007
Solicitor for the Applicant Mr R Kessels, Kessels Goddard & Ajuria
Solicitor for the Respondent Ms K Rose, DLA Phillips Fox
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