Wilson and Minister for Immigration and Border Protection
[2014] AATA 188
•4 April 2014
[2014] AATA 188
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1441
Re
Thomas Wilson
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 4 April 2014 Place Sydney The decision under review is affirmed.
........................................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION — Visa cancelation — Protection of the Australian community — Seriousness of offending behaviour —Whether Tribunal can go behind facts of conviction — Risk of recidivism—Strength, duration and nature of ties to the Australian community—Best interests of minor children—Impact of cancelling visa on immediate family—Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 35;
Crimes (Administration of Sentences) Regulation 2008 (NSW) – reg 22; 24;
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501— cl 6.1; 6.2; 6.3; 7(1); 8(1); 8(4); 9.1; 9.1.1; 9.1.2; 9.2; 9.3; 10(1)Migration Act 1958 (Cth) – ss 499(2A); 500(6J); 501(2); 501(7)(c);
CASES
Goldie v Minister for Immigration & Multicultural Affairs [2001] FCA 1318
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
R v Wilson (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Sully, Abadee and Dunford JJ, 18 December 1997)
R v Wilson (unreported, District Court of New South Wales, Coleman DCJ, 28 May 1998)
Re Poto and Minister for Immigration and Citizenship [2012] AATA 311
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421REASONS FOR DECISION
Senior Member A K Britton
4 April 2014
New Zealand citizen, Mr Thomas Wilson, seeks review of the decision made in March 2012 by a delegate of the Minister for Immigration and Border Protection to cancel his subclass 444 Special Category (temporary) visa. The stated reason for that decision was that Mr Wilson posed an unacceptable risk to the Australian community on account of his criminal history, which included convictions for maliciously inflicting grievous bodily harm and escaping from lawful custody.
It is agreed that the power to cancel Mr Wilson’s visa may be exercised because he does not pass the “character test” on account of having a “substantial criminal record” (ss 501(2), 501(7)(c) of the Migration Act 1958 (Cth) (the Migration Act)). The central question to be decided is whether that power should be exercised in this case. In making that decision, “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (the Direction), must be taken into account (s 499(2A)).
Mr Wilson contends that the power to cancel his visa should not be exercised because, among other things, he does not pose a risk to the Australian community and furthermore it is in the best interests of his wife and children that he be permitted to live in Australia. The Minister urges the Tribunal to affirm the decision to cancel Mr Wilson’s visa, and contends that he poses an unacceptable risk to the Australian community.
In December 2012 the Tribunal (differently constituted) decided that it was without power to review the decision to cancel Mr Wilson’s visa because his application for review was not lodged within the time period prescribed by the Migration Act. On appeal to the Federal Court, that decision was set aside (Wilson v Minister for Immigration and Citizenship [2012] FCA 1421). After that decision was handed down, Mr Wilson decided to return to New Zealand, on his account, because he was denied access to appropriate medical treatment for his heart condition in immigration detention and was keen to be reunited with his family.
Because Mr Wilson is no longer in Australia, even if his current application were to be successful he will not automatically be entitled to return and must apply for a new visa. While the Minister contends that in these circumstances the current application is of little utility, he does not dispute that Mr Wilson is entitled to seek review of the cancellation decision by the Administrative Appeals Tribunal.
Underpinning the Direction is the assumption that if the power conferred by s 501 — to cancel the visa held by a person with a substantial criminal record — is not exercised; the person will remain in Australia. The Direction provides no guidance on the approach to be taken in the circumstances of this case where the visa holder has left Australia and even if the decision to cancel their visa is set aside, will not necessarily be permitted to return. In applying the Direction I have taken the approach of assuming that Mr Wilson would return to Australia. For example in assessing, as required by the Direction, Mr Wilson’s risk of re-offending, I have assumed that he would be present in Australia.
Exercising the discretion to cancel the visa
The objectives together with other parts of the Direction provide a framework within which the task of deciding whether to exercise the discretion to cancel a person’s visa must be exercised. They state:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa 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. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The Direction states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (para 6.2(1)) and sets out six principles “of critical importance in furthering that objective” (para 6.2(1)) which must inform the exercise of the discretion (para 7(1)):
6.3 Principles
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
4Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
6The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction lists a number of “primary” and “other” considerations that must be taken into account where relevant (pars 7(1)(a) and 8(1)). The Direction instructs that “primary” considerations should generally be given greater weight than the “other” considerations (para 8(4)).
Three of the four primary considerations are relevant in this matter:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person’s ties to Australia;
(c)The best interests of any minor children in Australia.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction instructs that when considering primary consideration 1, a decision-maker should have regard to the principle that (para 9.1(1)):
… the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Direction instructs that in assessing the “protection of the Australian community” consideration be given to (para 9.1(2)):
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the person’s conduct to date
The Direction sets out a number of factors that must be taken into account in assessing the seriousness and nature of the criminal offending (para 9.1.1(1)):
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)…
(d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the person's offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h)…
(i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j)...
Nature and seriousness of Mr Wilson’s offences
Mr Wilson’s criminal history is set out in Annexure A to these Reasons. It reveals a pattern of violent offending commencing within three years of Mr Wilson’s arrival in Australia and ending in 1995, following his escape from custody.
In 1989 and again in 1993, Mr Wilson was convicted of the offence of assault, fined and released on entering a two-year good behaviour bond in the sum of $1000. Two years later while on a bond to the court to be of good behaviour, he was convicted of the offences of goods in custody, possess prohibited weapon and possess prohibited drug. He was fined and sentenced to two months imprisonment.
In July 1996 a jury found Mr Wilson guilty of the offence of maliciously inflicting grievous bodily harm (the index offence). That offence was committed while Mr Wilson was on bail for an unrelated matter. The sentencing judge described the offence as “horrific”: a planned attack on a helpless young woman executed in a cold and deliberated manner. The victim on returning home to an empty house one evening was confronted by an intruder wearing a balaclava and carrying a pinch bar. The NSW Court of Criminal Appeal described the offence in these terms[i]:
The intruder did not say anything to [the victim] but he began to assault her with the pinch bar he was carrying. The first blows fractured [the victim’s] left cheek bone and caused her to fall backwards. The intruder thereupon took hold of her and threw her into the dining room. She managed to get herself under the dining room table in the hope that that would shelter her from further attack. The intruder pursued her, took hold of her left leg, and struck it with the bar. He aimed further blows to her head and, she, in self defence, put up her left arm to shield her face. Blows were struck to that arm and it was broken. Further blows were struck; and [the victim], with remarkable presence of mind, took a deep breath, closed her eyes, and feigned unconsciousness. Her assailant struck her a few further blows to her legs; but shortly thereafter decamped.
The Court of Criminal Appeal dismissed Mr Wilson’s appeal against the conviction itself and the sentence imposed: an aggregate sentence of 18 years and eight months with a non-parole period of 14 years. (The offence carried a maximum penalty of 25 years.)
In August 1995 Mr Wilson escaped from custody after assaulting two prison officers. After two months at large he was arrested while carrying a concealed double-barrelled shot gun. Commenting on the nature of the offence the sentencing judge said[ii]:
It was not what is sometimes called an ordinary run of the mill escape from a prison complex by a prisoner who thought he had some compelling family or other business to attend to, or by a prisoner who took advantage of a lapse in security to walk away and then gain freedom. This was a deliberate and violent action indulged in by the prisoners involving the bashing of two prison officers, one of them severely, to obtain the result. On the scale of escapes it must be regarded as being towards the upper end in the range of severity.
The assaults on [the prison officers] are each of them important matters, however, the second assault on [the prison officer] was a serious matter because it continued beyond obtaining freedom from the cell and continued to the point where he was punched and ill-treated after the object had been obtained and the key had been turned.
On entering a guilty plea Mr Wilson was convicted of escape lawful custody, possess shortened firearm and assault prison officer (two counts). Mr Wilson was sentenced to two years for each assault offence and three years for the firearm offence, to be served concurrently.
In 2001 while in custody Mr Wilson was convicted of the offence “malicious destroy property”. He was given a two-year custodial sentence to be served concurrently. There is little information about that offence in the available material. A report dated 14 September 2007 prepared by Lithgow Correctional Centre manager, Joy Kirby, suggests that the offence was more serious than the description given by Mr Wilson in these proceedings. Ms Kirby wrote that it involved “hinges on a cell door being cut through and a hacksaw blade being found in the cell”.
Can the tribunal go behind the facts of the conviction?
Mr Wilson submits that in assessing the seriousness of the index offence, it is open to the Tribunal to go behind the facts of his conviction and find, as he claims, that he did not commit the offence. The Minister disagrees.
Mr Wilson has maintained his innocence since his arrest for the index offence. He now admits to some involvement in the offence, namely providing information about the victim and her movements, to the people who orchestrated the assault. In these proceedings Mr Wilson testified that those responsible for the assault were part of the criminal underworld and had he disclosed at his trial what he knew about the offence, his family would have been at risk. He claims that it was only on learning of the death of the surviving member of the group that was he was in a position to admit to any knowledge of, or involvement in, the offence.
In these proceedings Mr Wilson stated that he has taken steps to have his conviction for the index offence overturned. In a letter to the Tribunal dated 5 September 2013, seeking an adjournment of these proceedings, Mr Wilson’s solicitors advised that Mr Wilson is obtaining legal assistance (through other solicitors) to overturn that conviction and Mr Wilson understands that that action will be taken within the next eight to ten months.
In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, Branson J stated at [43] that while proof of a conviction is highly probative of the factual matters upon which a conviction is based there was “no absolute rule that the tribunal may not consider material which challenges the grounds on which a prior conviction was based”. Her Honour stated that a conviction is strong prima facie evidence that the facts found by the court were found correctly. This places a “heavy onus”, as Her Honour put it at [43], on a party seeking to persuade the Tribunal to accept facts other than those upon which the convicting court relied. Her Honour observed at [43] that this heavy onus:
[W]ill, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
Her Honour observed that people may on occasion plead guilty when a defence may have been available to them. This however is not such an example. Mr Wilson was found guilty by a jury after a contested hearing where he was legally represented. That conviction was upheld on appeal. The new evidence on which he now relies in support of his claim that he was wrongly convicted is: (i) the evidence he gave in these proceedings claiming that the perpetrator(s) of the index offence was part of the criminal underworld and his explanation for not disclosing that information at trial, and (ii) the evidence of steps taken to have the conviction overturned.
It is possible as Mr Wilson has maintained since his arrest in 1993, that he was not the perpetrator of the index offence. The available evidence however falls a long way short of discharging the heavy onus referred to by Branson J in Ali. In evaluating the seriousness of the index offence and the risk of Mr Wilson re-offending, I will proceed on the basis that as found by the District Court of NSW, he committed the index offence.
Warning of consequences of further offending
In a letter to Mr Wilson dated 8 July 1996 the Department advised that as a result of his conviction for the index offence he was liable for deportation. Mr Wilson claims that he has no independent recollection of receiving the letter although accepts on the basis of file note made by an officer of the Department recording a summary of a discussion with him about the contents of the letter that he probably did so. After being given that warning Mr Wilson committed a further offence of malicious damage.
(b) The risk to the Australian community should Mr Wilson commit further offences or engage in other serious conduct
The Direction instructs (para 9.1.2):
1In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Reports relating to Mr Wilson’s rehabilitation and risk of recidivism
Summarised below are the reports produced in these proceedings that comment on Mr Wilson’s conduct in custody and/or proffer an opinion about his risk of recidivism.
Report prepared for Serious Offenders Review Council
In a report dated 14 September 2007 and prepared at the request of the Serious Review Offenders Council by Lithgow Correctional Centre, Joy Kirby, manager of offenders’ services and programs, recommended that Mr Wilson’s security classification be reduced to E2 from E1 because it would enable him to participate in the Violent Offenders Therapeutic Program (VOTP). The Crimes (Administration of Sentences) Regulation 2008 (NSW) (the Regulations) provides a system of inmate classification. Categories E-1 and E-2 are “escape risk” classifications. Of these, “Category E‑1” is the highest risk category, as defined by the Regulations to mean the category of inmates who in the opinion of the Commissioner, represent a special risk to security and should at all times be confined: (a) in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment, or (b) by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment (see reg 24 of the Regulations).
Ms Kirby wrote that Mr Wilson continued to avail himself of, and performs well in, educational programs. She noted that his case notes are generally positive but he appears to participate in education rather than employment.
Ms Kirby wrote that Mr Wilson “presents as a contradiction in his custodial performance”. She noted that he has minimal charge history and generally is the subject of positive case notes and reports. On the other hand, referring to the comments made by Stewart DCJ on sentencing Mr Wilson for the offence of “malicious damage to property” (Unreported, Stewart DCJ, District Court of New South Wales, 23 March 2001), she wrote that Mr Wilson was “capable of duality of presentation”. In Ms Kirby’s opinion this, together with “the other assessments on file”, suggested that a full assessment was required and a whole of sentence plan be put in place “as it would appear that it is upon return to the community that the risk of re-offending will again be apparent”.
Report prepared by Professor David Greenburg
At the request of the Serious Offenders Review Council, psychiatrist Professor David Greenburg assessed Mr Wilson. In a report dated 29 November 2007, Prof Greenburg wrote that he was unable to provide a psychiatric assessment because Mr Wilson had been guarded and unco-operative during interview.
Under the heading “account of offences” Prof Greenburg wrote that Mr Wilson told him: “[H]e had been hired to hurt a woman for ‘someone else’”. He went on to write that, when asked about the motivation for the reported violence, Mr Wilson replied “There is a suggestion that there was financial gain”. In these proceedings Mr Wilson denied making those comments. He claims that he was misled about the purpose of the interview with Prof Greenburg and when it ended, immediately made a FOI request for his notes and report.
Report prepared by the Serious Offenders Assessment Unit
In a report dated 18 February 2009, psychologists with the Serious Offenders Assessment unit, Jen Grant and Daniel Matsuo, wrote that Mr Wilson posed a moderate to high risk of re-offending and that that risk was potentially higher, if his risk factors were not well managed. They strongly recommended that Mr Wilson be considered for the next available intake of the VOTP. The VOTP is an intensive treatment program run by the NSW Department of Corrective Services.
The authors recorded that Mr Wilson continued to deny committing the index offence although acknowledged a role in its planning. In their opinion, Mr Wilson displayed a very limited ability to show remorse for his role in the index offence or empathy for anyone apart from members of his immediate family. They noted that while he had spent most of his time in prison as a maximum security inmate he had taken steps to address his violent offending through participation in “recommended intervention” and had shown “exceptional efforts” in his studies and employment. The authors also noted that recent custodial reports indicated an improvement in Mr Wilson’s self-management and interpersonal behaviour. They wrote that while a genuine shift in Mr Wilson’s attitude was yet unproven, of late he appeared to have an unwavering motivation to pursue a pro-social lifestyle, largely inspired by his devotion to his family.
Ms Grant and Mr Matsuo gave a summary in their report of some of the psychological tests undertaken by Mr Wilson while in custody. These include:
Level of Assessment Inventory-Revised (LSI-R): According to Ms Grant and Mr Matsuo the LSI-R is a commonly used instrument to assess risk and takes into account static and dynamic risk factors. On testing in 2003, Mr Wilson’s score placed him in the moderate risk range. When retested in October 2006 his score was in the low-moderate range, the assessor attributing this reduction to Mr Wilson’s participation in education and employment while at Lithgow Correctional Centre.
Hare’s Psychopathy Checklist (PCL-R): According to the authors, research demonstrated that scores on the PCL-R are “highly correlated with risk of future violence”. Mr Wilson’s score under this test estimated that his risk of re-offending fell within the moderate range.
Historical Clinical Risk–20 (HCR-20): The authors wrote that the HCR-20 is an assessment guide used to estimate risk of future violence in offenders. They wrote that under HCR-20, Mr Wilson’s risk of re-offending was estimated to be moderate providing his risk factors, particularly those relating to attitude and compliance with remediation, were well managed.
Reports following Mr Wilson’s commencement in the Violent Offenders Therapeutic Program
Mr Wilson participated in the VOTP between November 2009 and May 2010 and attended monthly “maintenance sessions”, from August 2010 to May 2011.
In a progress report dated 8 March 2010, psychologist Sarah Lodington reported that Mr Wilson had made “sound progress” in the program and his behaviour in the “VOTP therapeutic community” was appropriate. She wrote that if Mr Wilson completed the VOTP, his likelihood of recidivism, which had been assessed as medium-high prior to commencing of the program, may decrease.
Psychologists June Wong and Cherice Cieplucha prepared a report following Mr Wilson’s participation in the VOTP (the May 2010 report). They wrote that while Mr Wilson accepted responsibility for organising the offence he remained adamant he was not the perpetrator. They wrote that prior to entering treatment his attitude appeared to be dismissive and he was “detached and unaffected” when discussing his role in the offence. The authors wrote that in the early part of the program, Mr Wilson displayed no remorse or empathy for the victim. However during the program when required to place himself in the position of the victim, despite some initial difficulty, Mr Wilson was able to acknowledge the victim’s suffering. They wrote that Mr Wilson described the program as a “turning point” and requested that the Restorative Justice Unit be contacted to determine whether he could meet with the victim for “closure purposes” (for the victim). The request was denied apparently because of Mr Wilson’s denial of the offence and because the victim was under the witness security program.
The authors wrote that in the course of the program Mr Wilson’s attitude “towards criminal activity and the law has shifted significantly”, that prior to his participation in the program psychometric testing identified “very active and strong criminal attitudes, values and beliefs” and post–program testing indicated “a weak criminal belief system whereby he no longer identified himself with criminals”.
While the authors did not proffer an opinion about Mr Wilson’s risk of re-offending they identified factors, which in their opinion, might either moderate or increase any risk. The former included Mr Wilson’s motivation to undertake and complete the VOTP program; the presence of pro-social supports, primarily his wife and children; his post-release employment and business plans; and, the absence of any history of substance abuse. The latter included: financial stressors, contact with former criminal associates and feelings of lack of control over his life.
Report prepared by the probation parole service April 2011
In a report dated 27 April 2011, probation and parole officer, Patti Hammond, recommended Mr Wilson’s release on parole with supervision (Mr Wilson became eligible for parole in July 2011). She wrote that it was only since his participation in the VOTP that Mr Wilson has come to acknowledge the suffering of his victims however he “does so in a somewhat perfunctory manner”. Ms Hammond recorded that throughout his lengthy incarceration, Mr Wilson was generally compliant and had received positive reports notwithstanding that he had been classified as high risk for much of that period.
Ms Hammond wrote that Mr Wilson’s capacity and resources, coupled with the strong support of his wife and children would assist him deal with the issues he will face on reintegrating into the community after a long period in custody. Ms Hammond recommended Mr Wilson’s release on conditions.
In a progress report written in September 2011, probation and parole officer, Rhonda Millet, endorsed the observations made, and opinion held, by Ms Hammond.
Reliability of the opinions about Mr Wilson’s risk of re-offending
Mr Wilson submits that the available psychological assessments are unreliable because they used as their baseline the February 2009 report prepared by psychologists Ms Grant and Mr Matuso. He contends that Ms Grant and Mr Matuso “fudged” their findings and gave an inflated estimate of his risk of recidivism to facilitate his admission into the VOTP.
Following the hearing Mr Wilson provided the Tribunal with additional reports he contends support his claim that the February 2009 report was fudged (these include the reports of Ms Kirby, referred to above). With the consent of the Minister I admitted those reports because they had been included in the documents produced under summons prior to the hearing at the request of the Minister and therefore that course did not offend s 500(6J) of the Migration Act. That provision makes it impermissible to have regard to documents not given to the Minister two days before the commencement of the hearing (see Goldie v Minister for Immigration & Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [31]). I have taken each of the documents filed by Mr Wilson after the hearing into account.
Mr Wilson is correct that of the available material, the March 2009 report offers the most troubling assessment of his risk of re-offending. The recent material he filed in these proceedings is broadly supportive of his claim that in 2004 he was not assessed as posing a medium/high risk of re-offending and for that reason considered ineligible to participate in the VOTP (see for example, letter from psychologist Angela McClements to the Psychology Unit at Goulburn Correctional Centre, 23 April 2004).
There is no direct evidence however to support the contention that the authors of the 2009 report deliberately gave an inflated estimate of Mr Wilson’s risk of re-offending to facilitate his entry into the VOTP. Nor, in my opinion can that inference properly be drawn from the available evidence. Ms Grant and Mr Matuso had regard to a number of assessments measures. They acknowledged that under some tests Mr Wilson fell within the low-moderate range and on others he fell within the high range. Their report is the only comprehensive risk assessment available in these proceedings. While their report is not determinative of the question of risk, particularly given that it was prepared prior to Mr Wilson’s participation in the VOTP, nor in my opinion should it be disregarded for the reasons advanced by Mr Wilson.
Conduct in custody
Mr Wilson was classified as a “high risk” or “extreme high risk” inmate for most of his time in custody. In November 2010 he was classified “Category C 1”, the third of six possible risk categories, and the lowest risk category assigned to Mr Wilson while in custody (See regs 22 and 24 of the Regulation).
The available reports about Mr Wilson’s employment are positive and refer to his diligence and strong work ethic. In 2002 the Serious Offenders Review Council recommended that Mr Wilson remain at Lithgow Correctional Centre and wrote: “excellent worker with excellent work reports, interacts well with staff”. In a work readiness assessment, prepared in July 2008, Mr Wilson’s then supervisor wrote that in in his role as “activities sweeper” Mr Wilson was proactive, participated in planning activities and showed a “huge amount of tolerance” in assisting other inmates in their personal fitness training. The officer wrote that Mr Wilson worked well with other officers, was punctilious and seldom had to be reminded to do something.
During his time in custody Mr Wilson undertook a number of occupational and rehabilitation courses. They are listed in Annexure B to these Reasons. In addition to the VOTP he has also participated in number of rehabilitation programs.
According to Mr Wilson, in contrast to other inmates he used his time in custody to improve and attain the necessary skills to enable him to find employment and/or establish a business on his release. The available material includes a number of reports that refer to Mr Wilson’s perseverance in pursuing educational opportunities. This is despite his limited access to educational resources on account of being classified high risk.
Mr Wilson claims that since the 1995 escape, his conduct in custody has been “faultless”. Apart from two charges ― disobey direction (1999) and alter prison property (2004) ― the available material contains no adverse reports of Mr Wilson’s conduct in custody after the escape.
Conduct in the community
Since returning to New Zealand in June 2012, Mr Wilson has lived in the community. His wife and children have visited him on three or four occasions. Mr and Ms Wilson married in New Zealand in August 2012 and now have a 12-month-old son.
While in New Zealand, Mr Wilson has obtained some casual work primarily in the fitness industry. He claims to have found obtaining employment difficult given the restrictions in the type and hours of work he can undertake on account of his heart condition. He receives a partial disability pension from the New Zealand government. Mr Wilson claims that since his arrival in New Zealand he has not committed or been charged with any offence. He also claims to have had no involvement with any former criminal associate since being charged with the index offence.
Mr Wilson claims he has no intention of re-offending or doing anything that would jeopardise his relationship with his family who mean everything to him and have stood by him over the past two decades: “I won’t even cross the road unless the lights are right”. Ms Wilson shares her husband’s confidence that he will not re-offend.
Findings and conclusions
The primary consideration — “protection of the Australian community” — requires an evaluation of the nature and seriousness of Mr Wilson’s conduct and the risk to the Australian community should he re-offend. The Direction emphasises the Government’s commitment “to protecting the Australian community from harm as a result of criminal activity … by non-citizens” and states that a non-citizen who has committed a serious offence should generally expect to forfeit the privilege of staying in Australia (para 6.3(3)).
While Mr Wilson denies having committed the index offence, he accepts that the role to which he admits was serious in nature. He also concedes that the other offences for which he was convicted were serious in nature.
The conduct for which Mr Wilson was convicted — a brutal, premeditated and unprovoked attack on a young woman — was plainly of a serious nature. His other violent offences, in particular those relating to the assault of prison officers, while not as serious were nonetheless serious. The lengthy custodial sentence given to Mr Wilson — a total of 34 years, the longest being for 18 years — points to the objective seriousness of his conduct.
While no argument that Mr Wilson’s conduct was serious in nature the parties disagree about the risk he poses to the Australian community. The Direction instructs (at para 9.1.2(1)) that in making that risk assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct ...
There can be no argument that if Mr Wilson were to engage in criminal conduct of the type previously committed, the harm that would be suffered by any victim would be significant. The injuries sustained by the victim of the index offence and the prison officers assaulted during the 1996 escape, bear this out.
The only significant issue in dispute is the likelihood of Mr Wilson re-offending. Mr Wilson submits that he poses no risk; the Minister on the other hand, contends that he poses a moderate to high risk.
In support of his submission that he does not pose a risk of re-offending, Mr Wilson points to: the passage of close to two decades since he committed his last violent offence; his remorse for his criminal conduct; the reports that he has matured throughout his long period on incarceration; the rehabilitation treatment he has undertaken, most significantly through the VOTP, and the favourable reports about his participation in those programs; his devotion to his family and his recognition that if he were to re-offend his relationship with them would be jeopardised; his good conduct over the past two and a half years spent in the community in New Zealand.
While the authors of the reports prepared after Mr Wilson completed the VOTP did not specifically address his risk of recidivism, all commented favourably on his participation in the program. A fair reading of those reports suggests that they considered that Mr Wilson’s risk of re-offending had reduced as a consequence of his participation in the VOTP. I am not persuaded however, as Mr Wilson asserts, that the inference can be drawn that the authors held the opinion that following his completion of the VOTP, his risk of re-offending was low. At best it can be said that were of the opinion that his risk had been reduced to some degree.
Mr Wilson faces the difficult task of persuading the Tribunal that he does not pose a material risk of recidivism notwithstanding the absence of any expert opinion to support that claim and his long history of violent offending. I accept that the weight of evidence indicates that after the 1996 escape, Mr Wilson was generally well behaved in custody and has matured. Throughout that period he has shown determination, self-control and resilience. While it may be, as suggested by the Minister, that Mr Wilson’s motivation for participating in the VOTP was largely pragmatic and motivated by a desire to obtain an early release date, nonetheless those responsible for overseeing his participation in the program considered that he had made significant progress in areas previously identified as of concern, including an apparent lack of empathy and remorse. I also accept that Mr Wilson’s commitment to his family is genuine and is likely to be a powerful protective factor against further offending.
I agree with Mr Wilson that the psychological assessments he has undertaken within custody are at best imperfect tools used to predict whether a particular individual will re-offend. In the present state of our knowledge it is not possible to predict with any certainty whether a particular individual will re-offend. As the Tribunal commented in Re Poto and Minister for Immigration and Citizenship [2012] AATA 311 at [27], the task of assessing that risk “involves an impressionistic assessment of the probability of re-offending conduct, regard to the available evidence of rehabilitation, and an appropriate reservation about the accuracy with which any such assessment can be made”. While psychological assessments are not determinative of the question of risk, it does not follow as Mr Wilson submits that they should be afforded no weight or that his self-assessment should be preferred.
Despite the positive evidence of rehabilitation and Mr Wilson’s conduct within prison (since 1996) and in the community over the past two and half years, I am unable to conclude that he does not pose a material risk of re-offending. Not only is there no expert evidence to support that conclusion but there is no reliable evidence to support his claim of having severed all ties with his former associates. I accept that his risk of re-offending has probably decreased since participating in the VOTP but I am not satisfied that he does not pose a real and material risk of re-offending. I think it more probable than not that his risk of re-offending falls within the low to moderate range.
The Consideration of the Protection of the Australian Community requires that regard be given to the probability of re-offending and also to the nature of the apprehended conduct. Being unable to conclude that Mr Wilson poses no real and material risk of re-offending, and having regard to the serious nature of the apprehended conduct, this Consideration weighs in favour of visa cancellation.
PRIMARY CONSIDERATION 2: STRENGTH, DURATION AND NATURE OF THE APPLICANT’S TIES TO AUSTRALIA
The Direction requires that regard be had to (para 9.2(1)):
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Wilson was 23 years of age when he arrived in Australia. He committed his first offence two and half years after arriving in Australia. Of his 25 years in Australia, 18 were spent in custody.
Mr Wilson has strong links to his immediate family who live in Australia: his wife, two sons and a daughter. All are Australian citizens. His family visited him on a regular basis throughout the entire period he spent in custody. In addition they visited him in New Zealand or three or four occasions.
In a statement provided to the Department of Immigration in 2010, Mr Wilson’s sister-in-law stated that she, her husband, mother and brother consider Mr Wilson to be a trusted member of their family.
A former associate of Mr Wilson in a statement prepared around March 2010 wrote that he maintained regular contact with Mr Wilson and his family throughout the period he spent in custody and considers Mr Wilson part of his family.
Mr Wilson claims to have maintained contact with a number of family friends throughout his period in custody. That claim is not particularised.
There is little evidence about Mr Wilson’s employment in Australia prior to incarceration. It would appear that he was in lawful employment for a period and then became involved with the people he claims organised the assault on the victim of the index offence.
Apparently Mr Wilson invested some money in a Sydney gym a few years before his release from custody. Mr Wilson claims his relationship with the gym’s owner has soured and he has not been able to recover his investment. He concedes, as a consequence, he no longer has any business links with Australians.
Mr Wilson’s strong connection with his Australian family assists him to some extent, but not to the extent it might had he spent a significant period contributing positively to the Australian community prior to his incarceration.
This Consideration weighs slightly against cancelling Mr Wilson’s visa.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
This Consideration requires evaluation of whether the decision to cancel Mr Wilson’s visa is, or is not, in the best interest of any minor child who might be affected by that decision (para 9.3(1)). The Direction instructs that where relevant the matters listed in para 9.3(4) must be taken into account and the best interests of each child should be given individual consideration. Where, as in this case, more than one child is relevantly affected, the best interests of each child must be given individual consideration to the extent that their interests may differ (para 9.3(3)). The Direction instructs that where relevant the following must be considered:
(a)The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the person’s prior conduct, and any likely future conduct and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
For the purpose of this Consideration only the interests of Mr Wilson’s minor children are relevant. Mr Wilson has two minor children: a 16-year-old daughter and a 12-month-old son. Orders have made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the publication of the names of the children. In these reasons I will refer to them as “Miss A” and “Master B”, respectively.
Miss A was born while Mr Wilson was in custody and has never lived with her father, apart from the short periods she visited him in New Zealand with her mother.
Since her birth Mr Wilson has maintained regular contact with Miss A. In addition to regular prison visits, according to Mr Wilson they had regular phone contact. Mr Wilson claims that since moving to New Zealand he maintains regular contact with Miss A by Skype.
In a statement prepared in March 2010 in support of her father’s application to be permitted to stay in Australia, Miss A, then 11 years of age, stated that she loved her father and looked forward to the day when he could come home and join her at school functions and other activities.
In a statement prepared in support of her husband’s application dated 11 October 2013, Ms Wilson stated that her daughter is in year 9 at a Sydney Catholic school and an able student and heavily involved in sporting and other pro-social activities. In her opinion Miss A is a “very smart, classical young lady”. She wrote that her daughter is “painfully shy” and has not coped well with having a father in prison. In a statement provided to the Department of Immigration in August 2010, Ms Wilson described the family as “close knit”. She referred to Miss A as “our little gift” and “the apple of [her father’s] eye”. She stated that while in custody Mr Wilson had taken an active interest in his children, played an important role in their lives and had assisted her in important decisions affecting their well-being such as the selection of appropriate schools.
Ms Wilson wrote that she finds caring for three children alone together with running a small cleaning business to support the family, mentally and physically exhausting.
While Ms Wilson has had sole parental responsibility for Miss A, I accept that Mr Wilson has assisted her to an extent in significant decisions involving Miss A. I also accept that Mr Wilson and Miss A have had regular and meaningful contact. While no evidence about whether Miss A continues to hold the view she expressed four years ago about wanting to be united with her father, it seems likely that she continues to hold that view. I accept that Miss A would be disappointed if her father were not to return to live in Australia.
Miss A will turn 18 in less than two years and therefore there is a relatively short period Mr Wilson could play a parental role in her life (in the sense used in the Direction). Nonetheless I accept that it would be in her best interests for Mr Wilson’s visa not to be cancelled.
Mr Wilson has not had any psychical contact with Master B who was born in Australia. There is no evidence of Mr Wilson having played any meaningful parenting role in Master B’s life to date.
While Ms Wilson was unavailable for cross-examination, diminishing the weight that can be given to her evidence, the preponderance of evidence is that during the long period her husband has spent in custody she has shouldered her parenting responsibilities admirably and is now exhausted. The arrival of Master B means she faces another two decades of parenting.
It would be in Ms Wilson’s interests to be reunited with her husband because, among other things, it would allow her to share the responsibilities and duties of parenting and ease the load she has carried for the past two decades. The interests of Miss A and Master B are inextricably linked with those of their mother. It is therefore in the interests of both children that their father’s visa not be cancelled.
Notwithstanding the limited parental role Mr Wilson has played to date, in my opinion it would be in the best interests of both Miss A and Master B that his visa not be cancelled. This Consideration weighs against the cancellation of Mr Wilson’s visa.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant.
Effect of visa cancellation on Mr Wilson’s immediate family in Australia
The Direction requires consideration of, where relevant, (para 10(1)(a)):
Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely
I accept that the cancellation of Mr Wilson’s visa has adversely affected members of Mr Wilson’s immediate family, all of whom are Australian citizens.
Ms Wilson has stood by her husband for close to 20 years. I accept that she is devastated by the decision to cancel her husband’s visa.
She claims that she would not entertain moving to New Zealand because: she would lose the business she has built up over the past 15 years and, in her opinion, she would be unlikely to earn a commensurate income in New Zealand; her daughter’s education would be interrupted at a critical point in her schooling; her infant son would be deprived of the wealth of opportunities she believes are available in Australia but not in New Zealand; she would be removed from her family and friends who have supported her over the past two decades.
In a letter prepared in March 2010 in support of his father’s application to remain in Australia, Mr Wilson’s eldest son, who was then 15 years of age, stated that throughout his life his father had provided him with guidance and acted as a mentor. Following an assessment conducted in 2010, psychologist Hamid Dadgostra wrote that Mr Wilson had an extremely positive influence on his son, who would benefit from being able to live with and have contact with his father.
This Consideration strongly weighs against cancellation of Mr Wilson’s visa.
The extent of any impediments Mr Wilson may face if removed from Australia
This consideration requires assessment of any impediment Mr Wilson may face if removed to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other New Zealand citizens).
Mr Wilson has demonstrated he is able to establish himself in New Zealand and maintain basic living standards. The concession made for Mr Wilson that he is not assisted by this consideration in my opinion was properly made.
Impact on Australian business interests
Mr Wilson concedes that as a result of the failed investment in the gym (see paragraph [79] above) he has no current business interests in Australia and therefore he is not assisted by this consideration.
Impact of non-cancellation on Australian community and victims of criminal behaviour
There is no evidence of the impact Mr Wilson’s visa cancellation would have on any of the victims of his offences or their families. I agree with the parties that on the available material it is not possible to make a finding about this Consideration.
SHOULD THE POWER TO CANCEL MR WILSON’S VISA BE EXERCISED?
The exercise of the power to cancel Mr Wilson’s visa requires all relevant considerations to be taken into account and a determination made about whether the risk of further harm to the Australian community by Mr Wilson is “unacceptable”. That decision must be informed by, among other things, the principles contained in the Direction, including that remaining in Australia is a privilege conferred in the expectation that the non-citizen will not cause or threaten harm to individuals, and, a non-citizen who has committed a serious crime should generally forfeit the privilege of staying in Australia.
The Direction instructs that in exercising the power to cancel Mr Wilsons’s visa I must take into account any relevant consideration (and generally give greater weight to primary considerations), and determine whether the risk of future harm by Mr Wilson is “unacceptable”, and conduct a “balancing exercise”. As the Tribunal (Justice Downes, President, and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations — and without forgetting other considerations that are generally regarded as being of lesser weight — we must ask ourselves: what is the preferable decision in this case?
While these comments were made in relation to a decision to cancel a visa made under the predecessor to the Direction, the task, and its inherent difficulty, remains the same.
Of the relevant Considerations the most significant in this case in my opinion are the protection of the Australian community, the best interests of Mr Wilson’s minor children and the impact visa cancellation has had and will have on his immediate family, his wife in particular. While as the Minister points out it would be an option for Ms Wilson and her children to join her husband in New Zealand, I accept that this probably won’t occur because she believes the family would be disadvantaged by living in New Zealand.
Mr Wilson arrived in Australia as an adult and has spent most of his time in this country in custody. Consistent with the Direction it would therefore in my opinion be inappropriate to afford Mr Wilson the “higher level of tolerance” that might be afforded to a person who arrived in Australia as at a very young age or who has lived in the Australian community for most of their life (para 6.3(4)). For the reasons given I am unable to agree with Mr Wilson’s submission that the available evidence supports a finding that he does not pose a real and material risk of re-offending. Given the nature of the harm that might be caused, if Mr Wilson’s offending conduct were to be repeated, in particular the type of conduct involved in the index offence, I have decided that any risk of re‑offending is unacceptable. For this reason I have decided that the preferable decision is to exercise the power to cancel Mr Wilson’s visa notwithstanding those considerations which weigh against an exercise of that power. I affirm the decision under review.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
........................................................................
Associate
Dated 4 April 2014
Date(s) of hearing 27 and 28 November 2013; 24 February 2014 Date final submissions received 26 March 2014 Solicitors for the Applicant Richard Killalea, KTG Lawyers Solicitors for the Respondent Louise Buchanan, Australian Government Solicitor ANNEXURE A
Date criminal conduct
Offence
Conviction
Court result
Charged on 3.09.1989 Assault 20.09.1989 Convicted. Released on self recognizance of $1000.
Good behaviour bond of 2 years Fine $250
Charged on ,11.11.1991 Assault 11.02.1993 Convicted. Released on self recognizance of $1000.
Good behaviour bond of 2 years
Charged on 10.12.1992 Goods in custody
Possess
prohibited
weaponPossess prohibited drug
24.05.1994 Imprisonment 2 months Fined $350 Fined $250 Conduct occurred on 18.02.1992 Maliciously inflict grievous bodily harm 03.07.1996 Imprisonment 14 years. Additional term of 4 years and 8 months (conviction and sentence upheld on appeal on 18.12.1997) 03.08.1995
17.10.1995
Escape lawful custody
Assault prison officer
Assault prison officerPossess
shortened
firearm28.05.1998 Imprisonment 3 years 9 months. Additional term of 1 year 3 months
Imprisonment 2 years
Imprisonment 2 years
Imprisonment 3 years26.12.1998-03.01.1999 Malicious damage property (prison cell door) 23.03.2001 Imprisonment 3 years ANNEXURE B
Course Date Stopping Offender Behaviour Program January – March 2002 Cognitive Skills Program February – July 2001 Basic Course in Non-Violent Conflict Resolution 15 January 2002 Advanced Course in Non-Violent Conflict Resolution 22 January 2002 Advanced Course in Non-Violent Conflict Resolution 17 January 2006 Train the Facilitator Course in Non-Violent Conflict Resolution 20 January 2006 Personal Effectiveness Programme: “Working in Groups” January 2002 Personal Effectiveness Programme: “Communication” Module January 2001 Health Survival Program 28 May 2008 Enough is Enough ‘R’ Program: Responsibility, Relationships, Reintegration 26 June 2008 Adult Education & Vocational Training Institute Achievement Award for Autonomy is studying Bachelor of Arts course 16 December 2003 Dept. of Sport and Recreation National Coaching Accreditation Course: Level 1 “Coaching Principles” November 1998 Sydney Academy of Sport National Coaching Accreditation Course: Level 2 “Coaching Principles” July 1999 TAFE Certificate III in Fitness 2006 - 2007 TAFE Statement of Attainment in Fitness Instruction Training Program 2001 Senior First Aid Certificate 7 November 2006 Adult Education & Vocational Training Institute Certificate in General Education for Adults Statement of Attainment: Fitness Theory Module 1 8 September 1998 Adult Education & Vocational Training Institute Certificate in General Education for Adults Statement of Attainment: Fitness Theory Module 2 10 September 1998 Adult Education & Vocational Training Institute Certificate in General Education for Adults Statement of Attainment: Fitness Theory Module 3 10 September 1998 Adult Education & Vocational Training Institute Certificate in General Education for Adults Statement of Attainment: Fitness Theory Module 4 14 September 1998 TAFE Statement of Attainment in Mentoring in the Community Training Program June 2002 Adult Education & Vocational Training Statement of Attainment: Certificate I in Information Technology – Operate a Personal Computer 2 November 2007 Adult Education & Vocational Training Statement of Attainment: Certificate II in Information Technology – Word Processing Operations 16 June 2006 Adult Education & Vocational Training Statement of Attainment: Certificate II in Information Technology – Spreadsheet Operations 31 August 2006 Adult Education & Vocational Training Statement of Attainment: Certificate II in Information Technology – Apply Occupational Health and Safety 7 December 2005
[i] R v Wilson (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Sully, Abadee and Dunford JJ, 18 December 1997) pp 1, 2
[ii] R v Wilson (Unreported, District Court of New South Wales, Coleman DCJ, 28 May 1998) p 5
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