WILLIE MICHAEL TAYLOR and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 369
•18 June 2012
[2012] AATA 369
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1305
Re
WILLIE MICHAEL TAYLOR
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 18 June 2012 Place Brisbane The Tribunal affirms the decision under review
..........[Sgd]..............................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Visa cancellation – New Zealand citizen – Extensive criminal history for serious offences – Failure to pass character test – Discretion to cancel visa – Primary and other relevant considerations – Protection of Australian community favours cancellation of visa – Decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 501
Penalties and Sentences Act 1992 (Qld)
CASES
R v Hicks and Taylor [2011] QCA 207
SECONDARY MATERIALS
Direction [41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
18 June 2012
INTRODUCTION
The applicant, Willie Michael Taylor, first came to Australia as a child in 1990 when he was approximately 3 years old. He returned to New Zealand when he was 12 years of age and returned to Australia when he was 14 years and 9 months. He left high school at the age of 17 and a half years. He came to the attention of the police before he had turned 18 where he was charged, convicted and had a conviction recorded against him. At the age of 20, after a series of other offences, he was warned by the Department of Immigration and Citizenship that he faced the prospect of his visa being cancelled. He was subsequently convicted of manslaughter and armed robbery in company at the age of 21 and is currently incarcerated.
The Minister of Immigration and Citizenship has determined that Mr Taylor did not pass the character test and, as a result, cancelled his Class TY subclass 444 Special Category visa (visa). He now applies to this Tribunal for review of the Minister’s decision to cancel his visa.
ISSUES
The questions for the Tribunal are:
1.Does Mr Taylor pass the ‘character test’ in s 501(6) of the Migration Act 1958 (Cth) (the Act); and
2.If the answer to (1) is ‘No’, should the discretion be exercised to cancel Mr Taylor’s visa under s 501(2) of the Act?
EVIDENCE
The facts of this case concern a young man who came to Australia from New Zealand at approximately 3 years of age. In Australia, he was raised initially by relatives who were not his natural parents, although he was not aware of this until shortly prior to his return to New Zealand at 12 years of age.
He departed Australia for two relatively brief periods in 1996 and 1998. He then returned to New Zealand at the age of 12 (from December 1999), which was said to have been an agreement with his “father” when he originally came to Australia. As noted below, his “father” was not his biological father but rather, his biological uncle. He returned to Australia on 25 June 2002, when he was 14 years and 9 months of age.
He received primary school education at Delaneys Creek State School, north of Brisbane, from 1993 to 1999, when he went to New Zealand. On his return to Australia the records presented to the Tribunal show his secondary school education was undertaken at Tullawong State High School, Caboolture, from 19 July 2002 until 19 November 2004, when he completed year 12.
After leaving school at the end of 2004, he quickly came to the attention of police. His criminal record is as follows:
Date
Offence
Age
09/05/2005
Mr Taylor convicted of commit public nuisance and fined $100
17
16/01/2006
Mr Taylor found guilty of commit public nuisance and fined $200 without conviction
Mr Taylor found guilty of obstruct police officer and fined $250 without conviction
18
03/05/2006
Mr Taylor convicted of commit public nuisance and fined $350
Mr Taylor convicted of failure to appear in accordance with undertaking and fined $400
18
17/05/2006
Mr Taylor convicted of grievous bodily harm and sentenced to 12 months imprisonment to be served by way of intensive correction order
18
09/02/2007
Mr Taylor breached intensive correction order imposed on 17/05/2006 and resentenced for original offence: Imprisonment 12 months, declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 81 days
19
21/05/2007
Mr Taylor contravened direction requirement and was issued with a community service order for 12 months to perform 40 hours.
19
03/12/2007
Mr Taylor convicted of commit public nuisance and fined $600
20
12/02/2008
Mr Taylor convicted of breach of community service order imposed on 21/05/2007 and fined $500. Re-sentenced for original offence and fined $500.
20
13/03/2008
Mr Taylor sent warning letter by the Department of Immigration and Citizenship (Department)
21
11/10/2010
Mr Taylor convicted of manslaughter and sentenced to 7 years 8 months imprisonment with a non-parole period of 4 years (772 days imprisonment declared as time served).
Mr Taylor convicted of attempted robbery and use/threaten violence armed/pretends to be armed or in company whilst armed with actual violence and sentenced to 4 years imprisonment to be served concurrently.
23
Oral Evidence
Mr Taylor made a statement that he had spent most of his life in Australia, and a few years ago he was “an angry person”. Since being in prison, he has reflected on the consequences of his actions, and stated that he was doing everything he could do to change himself from the person he was.
In cross-examination, he told the Tribunal his biological father passed away in 2011. The person he called “dad” was his biological uncle. When in New Zealand between the ages of approximately 12-15, he lived with his biological mother for most of the time and went to school there. He also spent some time with an aunt and was moved around to different family members while he was there. He recalled at 12 years of age he was told that his “dad” was not his real father. He said that produced anger in him and resulted in some of his subsequent behaviour.
He described his offending history in Australia, which started with an assault when he punched a person who was taken to hospital and admitted into intensive care. He was then 17 years of age. He went on to commit major offences because he was using “heavy” drugs while at school. He left home shortly after leaving school, and described himself as being, at that time, “arrogant” and involved with “the wrong crowd”. He stated in oral evidence that, at that time, while he was taking illicit drugs, he thought it was also “cool” not to sleep. As a result, his behaviour deteriorated and he became more violent.
When he returned to Australia from New Zealand at the age of 14 years and 9 months, he said that it was supposed to have been for two weeks only but he pleaded with those who he now regards as his family not to send him back to New Zealand. He has remained in Australia since. It is clear that he has much support from within his Australian family. It is also clear that his biological father was not a good influence based on the evidence.
In cross-examination, he was asked if he had thought about what he would do if he was returned to New Zealand. He responded that all those who he regards as his family are in Australia, even though he has a couple of biological sisters in New Zealand. He told the Tribunal that if he returned to New Zealand he would return to a “gangster lifestyle” (Exhibit 1, T-documents, folios 46-47).
The applicant also told the respondent’s counsel that since he has been in jail, he had done courses to improve himself, in particular, “Making Choices” which was a course designed to help him to have some control over his anger. There is also evidence that when he finished that course he got a very good report (Exhibit 1, T-documents, folio 48).
Mr Taylor said no one from his biological family in New Zealand loves him. However, Mr Eteuati, for the respondent, put to him in cross-examination that even though people loved him in Australia he still went on to commit a number of offences. He said “yes I did”. Mr Taylor also said that if he was returned to New Zealand it would be harder to rehabilitate as jobs there were scarce. He also said that he did not want to plan on how he would live his life in New Zealand as he said this would then make it easier for Australian authorities to return him to New Zealand.
Mr Taylor is a New Zealand citizen. He has made no enquiries of the Social Security Authorities in New Zealand as to his entitlements.
SUBMISSIONS
Mr Eteuati referred me to Direction [41] – Visa refusal and cancellation under s501 (Direction [41]) issued by the Minister for Immigration and Citizenship on 3 June 2009 and, in particular, paras 5.1 and 5.2. There are four considerations which the Tribunal must take account of, which are set out below.
1 - Protection of the Australian community
The matter of relevance in this consideration is the likelihood that Mr Taylor will reoffend. As mentioned above, the applicant claimed that he would not have love and support in New Zealand and might therefore return to a “gangster style” life. However, Mr Eteuati pointed the Tribunal to the evidence that despite the applicant having a loving and supportive family in Australia, he still went on to commit all of the recorded convictions while aged between 17 and 23, which culminated in the offences of manslaughter and armed robbery.
Also, a submission was made that Mr Taylor never had any control over his life. In response, Mr Eteuati submitted that only Mr Taylor can control his life.
The respondent argued that there is no evidence that the applicant will not reoffend and that even if the risk of reoffending is low, it is not a risk that the Australian community should have to accept.
2 - Whether the applicant was a minor when he began living in Australia
It was submitted that the applicant arrived here at approximately 3 years of age and has remained in Australia for most of his life. Mr Eteuati said that this should weigh in the applicant’s favour. I note the Ministers’ submission is that it should not weigh heavily in his favour.
3 - The length of time that Mr Taylor has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
It is submitted that this consideration would weigh in his favour, although his relationship with Australia has been a negative one.
4 - International obligations
There are no issues of relevance to be considered under this heading in this case.
The applicant’s submissions, put by Mrs Taylor, were that she agreed it is up to the applicant as to whether he takes control of his life in the future. She said the visa cancellation has been “a wake-up call” for him. She also submitted that the courses that the applicant did or did not do in jail depended on whether the corrective services authorities made courses available to him. She made a submission that a lot of the applicant’s problematic background was due to his father’s neglect. Ms Taylor also pointed out that there was support within her family for Mr Taylor when he is released from prison.
CONSIDERATION
In answering the issues for determination, the following legislative provisions of the Act are relevant:
Section 501(2)
(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.
Section 501(6)
(6) 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
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Section 501(7)
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
In exercising the discretion under s 501(2) of the Act, consideration must be given to Direction [41]. The following fundamental considerations must be taken into account:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
5.2 General Guidance
…
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
…
7 Overview of the character test
(1) … A visa may be cancelled if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that they pass the character test.
7.1 Substantial criminal record
(1) A person will not pass the character test if the person has a substantial criminal record. The term ‘substantial criminal record’ is defined in section 501(7) of the Act.
7.2 Association
(1) A person will not pass the character test if the person has or has had an association as defined in paragraph 6(1) of this Direction.
…
(3) Subject to paragraph 7.2(2) of this Direction, an assessment of whether the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation is required – mere knowledge of the criminality of an associate is not, in itself, sufficient to establish associations. In order to not pass the character test on this group, the association much have some negative bearing upon the person’s character.
7.3 Past and present criminal conduct
(1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
(a) the nature, severity and frequency of the offence/s;
(b) the period since the offence/s were committed;
(c) where the offence/s were committed;
(d) the person’s record since the offence/s were committed, including:
(i) any evidence of recidivism or continuing association with criminals;
(ii) any pattern of similar offences;
(iii) any pattern of continued or blatant disregard or contempt for the law;
(e) any circumstances surrounding the offending which may explain the conduct such as may be evident from judges’ comments, parole reports and similar documents; and
(f) any good acts of the person after their criminal conduct are indications that the person’s character may have reformed.
Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the person’s character.
7.4 Significant risk in regards to future conduct
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a significant risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. Those types of conduct are discussed below.
…
(3) It is not sufficient to find that a person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a significant risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
7.4.1 Significant risk of engaging in criminal conduct in Australia
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a significant risk that the person will engage in criminal conduct in Australia.
…
In exercising the discretion under s 501 of the Act, para 11 of Direction [41] also requires that “other considerations” must be taken into account where relevant, although less weight should be given to these, relative to the “primary considerations”.
Issue 1 – Does Mr Taylor pass the character test in section 501(6) of the Act?
Section 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record or, having regard to their past and present criminal conduct, the person is not of good character. Alternatively, the person will not pass the character test where, in the event that the person was allowed to remain in Australia, there is a significant risk that the person would engage in criminal conduct in Australia.
The term “substantial criminal record” is defined in s 501(7) of the Act and includes:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more; or
…
The applicant’s criminal record is set out above. It shows that a short time after leaving school he was arrested and charged with committing a public nuisance offence. He told the Tribunal that offence involved a person being hospitalised and placed in intensive care. Given his relative youth, the court regarded it as a serious offence as he was convicted and fined, albeit as a first offender. Seven months later, and at the age of 18 years, he was convicted of the same offence as well as obstructing a police officer; he was fined for both offences however on this occasion convictions were not recorded against him. Four months later he was convicted again of two offences and fined. No more than two weeks later, and still only 18 years of age, he was again before the court, this time being convicted of grievous bodily harm and sentenced to 12 months imprisonment to be served by way of an intensive correction order. An intensive correction order is, under the Penalties and Sentences Act 1992 (Qld), a sentence of incarceration but, as last chance before being sent to prison (usually, for example because of a persons’ youth), they are given an opportunity to serve out that sentence in the community. However, nine months later while under that sentence, Mr Taylor breached that intensive correction order and was required, therefore, to be resentenced for the original offence. That time he was sent to prison. He was then only 19 years of age. He was subsequently brought before the courts again and convicted on two further occasions in 2007, aged 19 and 20, and on one occasion in 2008, being 20 years of age at that time.
On the basis of that criminal history and a pattern of recidivism for such as young man, the Department of Immigration and Citizenship regarded it as unacceptable and sent a warning letter to him on 13 March 2008. That letter warned that his visa may be revoked if there was any future offending. When the department sent that letter it was unaware that the applicant had by then, been involved in the serious indictable offences of attempted armed robbery and manslaughter (in company with two other men) which had occurred in 2007. That was only a matter of weeks after he had turned 20 years of age. He was convicted in the Supreme Court of Queensland of those offences.
To place consideration of this matter into context, it is proper to understand the background and the contribution made by the applicant. The facts of the offences involved in the latest convictions were that Mr Taylor went with two other men to a house where they thought a cousin of one of the co-offenders lived. The “cousin” was said to be a drug dealer. It was unknown to the three co-offenders that the house had since been sold and was then occupied by an elderly man who was unconnected with the former occupant or the three co-offenders.
At the scene of the crime, one of the co-offenders broke into the house, struggled with the elderly man who occupied the house and then shot him in the head with a sawn off 0.22 rifle. The sentencing remarks of Justice Chesterman at the sentencing hearing in the Supreme Court of Queensland are apt in describing the offence and the degree of culpability of Mr Taylor. They were also taken into account by the principal assessor at the time of cancelling Mr Taylor’s visa. That assessor considered, relevantly, the following submission which was an extract of the sentencing remarks by Justice Chesterman when Mr Taylor was sentenced for those offences, as follows:
23. Justice Chesterman noted that:
“These offences have left a harmless old man dead in his own home. It was violently broken into and entered about midnight. Although he attempted to struggle, he was, as I say, overpowered and shot. His family are distraught. One of his daughters, concerned about him, went to the house and found his dead body in the lounge room. His son had to identify the body in the morgue. His other daughter who spoke to the court this morning, has given eloquent testimony to the family’s grief and their deep sense of loss and a sense of outrage at the manner in which their father lost his life”.
24. Justice Chesterman stated that Mr TAYLOR was to be:
“… sentenced on the basis that [he] did not [himself] take part in the killing nor assist [the killer]but on the basis that an unintentional killing, manslaughter, was the probable consequence of [the offenders’] unlawful purpose to rob the householder who they believed to be [another person].
…
There can, I think, be no doubt that [his] motive for taking part in the robbery or the attempted robbery was financial gain”.
25. In comparing Mr TAYLOR’s responsibility with that of his co-offender, Justice Chesterman stated the Mr TAYLOR’s responsibility was less as he was unarmed and he did not know where the intended victim lived.
26. In relation to the seriousness of Mr TAYLOR’s offences, Justice Chesterman stated that:
“Deterrence and denunciation are of particular significance to the sentences…The community is rightly concerned that people should be safe in their own homes. The sentences…must be severe enough to discourage other would-be home invaders against trying it on.
The penalty must register the community’s dismay at such a crime and its condemnation of such criminal wantonness”.
27. Justice Chesterman noted that at the time of committing the manslaughter and attempted robbery offences, Mr TAYLOR was subject to a parole order.
28. Mr TAYLOR has a previous conviction for Grievous Bodily Harm for which he was sentenced to 12 months imprisonment to be served as an intensive correction order.
Mr Taylor was sentenced as follows:
a)For the manslaughter – 7 years, 8 months’ imprisonment with parole eligibility date of 8 April 2012;
b)For attempted armed robbery in company – 4 years imprisonment.
The Court ordered the sentences to be served concurrently and took into account 772 days of pre-sentence custody between 8 April 2008 and 19 May 2010, which it declared to be time already served under the sentences imposed.
Mr Taylor appealed against the severity of this sentence. In rejecting his appeal, the Queensland Court of Appeal described Mr Taylor as the youngest of the participants and that he had gone along with the others. He was not armed during these offences. His motive however for becoming involved was not established (see R v Hicks and Taylor [2011] QCA 207 at [19]).
This evidence shows the applicant’s pattern of offending was serious, ongoing and escalated over time. The lifestyle of the applicant was clearly non-law abiding. He described himself as an “angry person”. It seems his life was to a large extent dysfunctional.
I make the following findings in relation to the statutory criteria for determining the “character test” in s 501 of the Act:
(1) I find Mr Taylor has a “substantial criminal record” as defined in s 501(7). He therefore does not pass the character test specific to s 501(6)(a).
(2) The applicant stated in evidence that he mixed with the “wrong crowd” after leaving school. He was then on drugs and committed a number of breaches of the peace. But Mr Taylor’s association with serious criminal offenders at the time of the offences of armed robbery and manslaughter show that the pattern of associating with criminals had not abated. I find therefore, that he does not pass the character test in terms of s 501(6)(b).
(3) The ongoing and escalating criminal behaviour from ages 17-20 when he was arrested for armed robbery and manslaughter, points to him not being a person of good character in terms of s 501(6)(c).
(4) The question of whether he would engage in future criminal conduct in Australia cannot be answered with any certainty. He will fail s 501(6)(d) only if there is a “significant risk” that he is likely to be involved in criminal behaviour as manifested in a number of ways. The subsection refers to circumstances where there is a serious risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v) represent a danger to the community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Mr Taylor has been involved in criminal conduct which led to the commission of serious indictable offences. This conduct commenced at the start of his adult life (after leaving school) when he was 17 years of age and continued up to the time of his arrest for the serious indictable offences for which he is now in prison. Some of the offences he has committed have also been violent offences.
The applicant’s evidence is that if he is returned to New Zealand, he will return to a “gangster style” life. The respondent pointed to the factors of love and support which the applicant said were missing from his family life in New Zealand. However, those factors were present in his life in Australia yet that did not prevent him from engaging in crime. The applicant admitted this under cross-examination.
The indicia argued by the applicant do not weigh heavily in support of his potential avoidance of crime in the future. I make a finding of fact that on the balance of probabilities, he is likely to be a significant risk if allowed to remain in Australia and therefore he also does not pass the character test in terms of s 501(6)(d).
On this basis he fails each and every one of the applicable factors in s 501(6) when he is assessed against the elements of the character test. I conclude that Issue 1 must be determined by overwhelming evidence that Mr Taylor fails the character test.
Issue 2 – If the answer to Issue 1 is ‘No’, should discretion be exercised to cancel Mr Taylor’s visa under s 501(2)?
In relation to this issue, the question is whether, despite Mr Taylor not satisfying the character test, should he be allowed to remain in Australia. That requires an exercise of discretion which results from a determination of the four “primary considerations” set out in para 10 of Direction [41]. I deal with each of the primary considerations below.
Primary Consideration 1 - Protection of the Australian community
The respondent says that there is no evidence that Mr Taylor will not reoffend. The applicant’s case is that he never had any control over his life which led to his offending behaviour.
Paragraph 10.1.1 of Direction [41] deals with the seriousness and nature of the conduct. Crimes of violence are of special concern to the welfare and safety of the Australian community. The offence of manslaughter is mentioned specifically in paragraph 10.1.1(2)(a). Another of the offences of which Mr Taylor has been convicted is grievous bodily harm, which is mentioned in para 10.1.1(2)(d). Another offence, robbery, is contained within para 10.1.1(2)(e). The nature and number of offences must be taken into consideration as well as the time between the offences. The sentence is to be considered as an indicator of the seriousness with which the court viewed the offending behaviour. All of these considerations go to the weight to be given to determining Primary Consideration 1.
Here, it is indisputable that the offending behaviour was very serious and sustained. The risk that the offending may be repeated is referred to in para 10.1.2 of Direction [41]. The Tribunal must take into account the history and pattern of convictions which provides a guide to the likely level of the risk of reoffending; the extent of rehabilitation; and any evidence that an offender has breached judicial orders.
The criminal history shows the offences which Mr Taylor committed were most serious and the sentences were not at the lower end of the range. In addition, he has breached judicial orders in the past. The repetition of offending weighs against the applicant in this case, particularly in relation to the most recent offences which are the most serious in his criminal record. I take into account that he does seem to have been a follower rather than a leader in the latest offences, comparatively with his co-offenders.
However, I find that in respect of Primary Consideration 1, the pattern and extent of offending leads to the conclusion that the Australian community continues to be at serious risk in the future.
Primary Consideration 2 – Whether the applicant was a minor when he entered Australia
This issue is contained in para 10.2 of Direction [41]. Mr Taylor has clearly spent the majority of his life in Australia. His natural family is in New Zealand; however, he has a most supportive ‘family’ in Australia. They are a strong base of support for him. The respondent acknowledged that this is a factor in Mr Taylor’s favour, although the Minister’s delegate submits that it should not weigh too heavily in the assessment.
It seems to me that Direction [41] requires a decision-maker to give considerable weight to this matter in Mr Taylor’s favour, where, in his circumstances, he has spent the majority of his life in Australia. The length of time in Australia must be regarded also as very important since Mr Taylor spent most of his childhood in this country. In addition, his age and the support of members of the family he grew up with in Australia are critical elements of and are integral to his support network for the future, which will contribute to his general stability. From his evidence to the Tribunal, he does not wish to go back to New Zealand because of the lack of employment opportunities. Therefore, he undoubtedly has a strong preference for remaining in Australia.
This primary consideration is therefore one which weighs strongly in Mr Taylor’s favour.
Primary Consideration 3 – The length of time as a resident before the applicant engaged in criminal activity
Mr Taylor has spent most of his childhood in Australia. Additionally, apart from the first three years of his adolescence in New Zealand, he has spent the remainder of his life in Australia.
After returning from New Zealand, Mr Taylor spent 18 months in High School. However, since he left school seven years ago, he has been constantly involved in an unsatisfactory lifestyle; he has been involved in an escalating pattern of offending for four years. He has in jail for the past four years (approximately), that is, since he was 20 years of age.
The submission on behalf of the Minister was that this consideration should not be given great weight. However, I have formed the view that this matter should be given a good deal of weight. This is because of the guidance in para 5.2(4) of Direction [41].
This primary consideration is important in the decision-making process, particularly because of the applicant’s relative youth and length of time in Australia. Of his 24 years, the period he spent in Australia is approximately from ages 3-12 (a period of approximately 9 years) and, since returning to Australia, from aged 14 years and 9 months until the present time (about 10 years). He therefore has spent 18 of his 24 years in Australia. He acknowledged that he exhibited offending behaviour from the period he was in New Zealand in his early adolescent life. He has certainly been in trouble with the police in Australia ever since he left school at age 17. Therefore, Mr Taylor has spent about 11 of his first 17 years (or about two-thirds of that period) in Australia before he left school and commenced an ongoing criminal career in Australia.
In my view, after taking account of all this material, this primary consideration is of moderate strength in Mr Taylor’s favour in the final balancing of all the primary considerations.
Primary Consideration 4 – International obligations
The respondent submitted there are no factors under this category which are relevant here. I agree.
Final Consideration
In trying to balance these factors, the Tribunal is dealing with the impact of a serious criminal background in terms of the likely adverse consequences for Australia. The Tribunal must consider these factors in light of a ‘purposive’ approach. This is because of the existence of para 5.1 of Direction [41]; the objective of the Act is to regulate the presence of non-citizens in Australia (para 5.1(1)). The Parliament is also especially mindful of the obligation to protect the safety of the community (para 5.1(2)), in particular, more vulnerable members including minors, the elderly and the disabled (para 5.1(3)).
The Tribunal’s assessment does not involve a punitive element in making these assessments. The Tribunal’s role is to weigh the statutory factors objectively in arriving at a balanced decision. This is in the context of someone who now identifies with Australia as his choice of domicile.
The applicant has not passed the character test. There is an overwhelming failure of the factors in the character test in s 501(6) of the Act. In assessing the four primary considerations and their net effect, from the criminal history and the repetitive nature of the offending, this seems to me to result in a conclusion that there is a clear right that the Australian community must be protected against the significant risk of future offending behaviour.
Even taking into account the length of time in Australia as a minor and before recorded convictions (which must be regarded as ameliorating the negative impact of Mr Taylor’s criminal record), on balance, the extensive and serious criminal record outweighs the favourable considerations for the applicant. The length of time between offences also weighs against him. On the basis of assessing the statutory requirements in terms of the primary considerations, I would exercise the discretion against Mr Taylor and cancel his visa.
“Other Considerations”
There is a further level of consideration to be afforded to this matter which is contained in the provisions of para 11 of Direction [41]. There, “other considerations” are listed which must be taken into account where they are relevant. If relevant, they should be given less weight than the primary considerations. In respect of these “other considerations”, I find:
(i)There are family ties to be considered, but no evidence was presented of a business, marital, age (either very young or very old), health, or disability nature which would directly or adversely impact on the applicant if his visa is cancelled. He is 24 years of age and healthy, and also has a relatively good education to enable him to be competitive for work in future.
(ii)While there are family ties in New Zealand for Mr Taylor to call on, they seem to be blood relationship ties although it is apparent they are not likely to be close or very supportive to him.
(iii)There was no evidence presented of hardship (other than perhaps cost) for the family to travel to New Zealand to visit Mr Taylor.
(iv)There has been no suggestion that the family members in Australia are dependent on him.
(v)No language barriers seem to exist.
(vi)The applicant has a Grade 12 education from Queensland and would not seem to lack a capacity to advocate for himself or others, even though a “family member” advocated for him at the Tribunal hearing.
Another factor in “other considerations” in para 11 of Direction [41] is concerned with warnings given previously to the applicant. I note Mr Taylor had been previously warned by the Department of Immigration and Citizenship as noted earlier in these reasons but the Department was unaware at that stage that he had committed the other indictable offences of armed robbery and manslaughter, for which he is now incarcerated. That has been taken into account in arriving at the final determination although it is not a factor which weighs heavily against Mr Taylor because of the timing of that letter in relation to the later offences.
The final factor of relevance is that Mr Taylor has spent so much of his life here. This consideration is clearly to be given considerable weight. His youth and unfortunate background (which undoubtedly his parents and others in New Zealand have made a contribution) are factors which should be viewed in the most positive light which can be found, as he is young and with a future life ahead of him.
The Australian community must always try to find ways to facilitate positive future lives for young people and for them to be as productive as possible.
Balancing these factors is not an easy task, particularly where Mr Taylor’s adult life since leaving school has been unproductive and violent, and it has only ceased since he has been in jail. The Tribunal can only assess this on the available evidence against the statutory factors. Regrettably, I have reflected on how this might balance in favour of the applicant but I cannot find that it weighs sufficiently in his favour on the balance of all relevant considerations.
The purpose of these laws is to ensure the safety of the community as far as reasonably possible. The continued offending by Mr Taylor, and his own uncertainty about his ability to control his behaviour in future, must be a cause for serious concern. The pattern of offending has become progressively more serious since leaving school. The record as presented in evidence before the Tribunal demonstrates that he has been an ongoing risk to the community, including vulnerable groups such as the elderly. While he did not actually fire the shot which killed the old man who was the victim in the manslaughter, his own violent history and continued association with criminals has been a thread running through his offences and which links to his recidivism. For many persons of Mr Taylor’s age and length of time in Australia, it would be often be justifiable, except where the offence history shows an appalling criminal record with no redeeming features, to find that the person should be allowed to remain in Australia. Unfortunately, Mr Taylor has such an appalling criminal record and his time before going to prison and while in prison, does not instil any confidence that he has the capacity not to re-offend. For example, since being in prison, he has been breached with one offence of violence, one offence of some form of threatening behaviour, one offence of having an implement which might be used for taking drugs and last year, there was one offence of having a quarter of a white table in his cell.
I therefore find that there is cause for genuine and heightened concern that his past offending behaviour will recur if he remains in Australia for the rest of his life. The balancing of these “primary considerations” and the “other considerations” clearly weighs against Mr Taylor, notwithstanding his length of time in Australia and his support network here.
Consequently, I determine his application must fail. Therefore, Mr Taylor’s visa must be cancelled.
DECISION
I find the decision under review must be affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD. .........[Sgd]...............................................
Associate
Dated 18 June 2012
Date(s) of hearing 31 May 2012 Advocate for Applicant Triana Taylor
Solicitor for Respondent Tigiilagi Eteuati
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