Wood and Minister for Immigration and Multicultural Affairs
[2006] AATA 423
•16 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/9
GENERAL ADMINISTRATIVE DIVISION ) Re James Wood Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date16 May 2006
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of special category visa – Federal Court remittal substantial criminal record – applicant fails character test – exercise of discretion – consideration of the best interests of applicant’s six year old child – consideration of applicant’s relationship with child and extent of that relationship – significant risk of recidivism – applicant’s commitment to his son has not so far dissuaded him from criminal activities – reasonable to assume child’s best interests would be served by not cancelling the applicant’s visa – primary considerations outweigh the interests of the child.
Migration Act 1958 ss 499, 501, 501(6)(c)
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
16 May 2006 Professor GD Walker, Deputy President Summary
1. The applicant, James Wood, aged 30, a citizen of New Zealand, applied to the Administrative Appeals Tribunal for a review of a decision of a delegate of the respondent, the then Minister for Immigration and Multicultural and Indigenous Affairs, made on 9 March 2005 to cancel his subclass TY444 special category visa on the ground that he did not pass the character test because of his substantial criminal record.
2. On 2 June 2005, the tribunal affirmed the decision. On 9 December 2005, the Federal Court of Australia ordered that the decision of the tribunal of 2 June 2005 be set aside and the matter remitted back to the tribunal to be determined according to law.
3. The respondent, the Minister for Immigration and Multicultural Affairs, states that the applicant has a substantial criminal record including offences of break and enter and assault and therefore does not pass the character test. The respondent therefore cancelled the applicant’s special category visa. This is the decision to be reviewed on appeal by the tribunal.
Issue
4. In this case, the applicant concedes that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having been sentenced to terms of imprisonment totalling more than two years. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.
The applicant and the original review
5. Mr Wood was born in Hamilton, New Zealand on 12 March 1976 and is aged 30. He is a citizen of New Zealand. He first came to Australia on 24 January 1987 at the age of 10, as the holder of a subclass TY444 special category visa. He arrived with his mother, step-father and half-sister. He completed schooling to year 10. On 28 December 1997, he commenced a relationship with Sonja Willis and on 4 November 1999, his son Nathaniel Leslie Wood, was born. His relationship with Ms Willis ceased in December 2001. He has a history of drug abuse since the age of 14.
6. Between 1994 (at age 18) and 2005, he committed a series of offences in both Queensland and New South Wales, using approximately six aliases. His offences included:
Court
Date
Charge
Result
Brisbane Magistrates Court
5/12/1994
Wilful and unlawful damage to property
On all charges – probation 12 months – community service order 100 hours. Total restitution $100
Brisbane Magistrate Court
11/10/1995
Breach of community service order
Convicted and fined $100. Restitution $100. Order discharged.
Tweed Heads Local Court
26/11/1996
1. Steal from Dwelling
2. Break enter and steal
On both charges, fixed term four months commencing 12/12/1996 concluding 11/4/1997
Southport Magistrates Court
10/10/1997
Use threatening and abusive or insulting words
s 12 Penalties and Sentencing Act - No conviction recorded.
Southport Magistrates Court
5/2/1998
Stealing
Attempt to enter dwelling with intent to commit indictable offence
On each charge convicted and sentenced to six months imprisonment. Probation three years after.
Southport Magistrates Court
22/10/1999
Use insulting words
Obstruct police officer in course of duties
Convicted and fined $100 in default four days
Convicted and fined $150 in default six days
Restitution $300 in default imprisonment four months
Tweed Heads Local Court
8/3/2000
Robbery
Robbery in company
Assault with intent to rob armed with offensive weapon
Drive conveyance taken without consent of owner
Committed for trial.
Bench warrant issued for failure to appear.
Southport Magistrates Court
25/5/2000
Breach probation order imposed on 3/2/1998 re attempt to enter dwelling with intent to commit indictable offence.
Enter dwelling with intent to commit indictable offence (two charges).
Stealing
Convicted and sentenced six months imprisonment.
Coolangatta Magistrates Court
20/12/2001
Fraud – dishonestly obtain property from another
Convicted and sentenced 14 days imprisonment, suspended for two years. Restitution $40, in default imprisonment two days.
Lismore Local Court
4/6/2002
Drive conveyance taken without consent of owner.
Face blackened/disguised with intent to commit indictable offence
Bench warrant issued.
Southport Magistrates Court
4/11/2002
Breach bail undertaking on 17/10/2002
Breach bail undertaking on 2/11/2002
Unauthorised dealing with shop goods
Stealing - two counts
Wilful damage police property
On all charges convicted and fined $450 in default 9 days imprisonment.
Cumulative convicted and fined $400, in default 9 days.
On each charge convicted and sentenced imprisonment five months.
Convicted and sentenced imprisonment three months.
Southport Magistrates Court
6/11/2003
Unlawful entry of vehicle with intent to commit indictable offence
Stealing
Fail to take reasonable care and precaution in respect of syringe or needle
Possess instrument with intent to commit indictable offence in the daytime
Possess tainted property
Receive stolen property or property fraudulently obtained
On all charges dealt with on this date, convicted and sentenced to 12 months imprisonment concurrent, declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 53 days.
Inala Magistrates Court
1/3/2004
Obstruct corrective services officer
Convicted and sentenced one month imprisonment.
Southport District Court
11/6/2004
Enter or in premises and commit an indictable offence and break (12 counts)
Unlawful use of motor vehicle (2 counts)
Assault occasioning actual bodily harm on 29/8/2002
On all charges conviction recorded. Imprisonment 12 months suspended for two years after having served a period of three months imprisonment. All terms of imprisonment to be served concurrently and concurrent with sentence presently undergoing.
Lismore District Court
11/5/2005
Use disguise or blackened face with intent to commit indictable offence
Convicted and sentenced to 18 months imprisonment, non-parole period six months.
7. The applicant also has 18 motor vehicle-related convictions including driving an unregistered vehicle, driving an uninsured vehicle, driving an un-roadworthy vehicle and driving while licence suspended.
8. On 9 March 2005, a decision was made by a delegate of the Minister to cancel Mr Wood’s special category visa pursuant to s 501(2) of the Migration Act 1958 (“the Act”) on the ground that he did not pass the character test because of his substantial criminal record. On 21 March 2005, the applicant lodged an application for a review of this decision by the tribunal. The matter was heard before then Deputy President Muller on 24 May 2005. On 2 June 2005, the decision was affirmed by the tribunal, on the basis that he did not pass the character test because of his substantial criminal record and the tribunal having found that the primary considerations far outweigh any other considerations. With regard to the best interests of Mr Wood’s son, the Deputy President found:
24. Mr. Wood has a five year old son. He has had very little contact with the boy. His son is an Australian citizen who lives with his mother who is also an Australian citizen. Mother and son are now part of a new family relationship. Re-location of Mr. Wood’s son to New Zealand is clearly out of the question. If Mr. Wood returns to live in New Zealand he will no doubt lose contact with his son. This may be hard on Mr. Wood, but I doubt whether it would make much difference to his son. They hardly know each other.
25. I do not regard this factor as particularly important in this case.
The Federal Court appeal
9. The applicant subsequently lodged an appeal in the Federal Court of Australia. On 9 December 2005, Justice Edmonds, made an order, by consent, quashing the decision of the tribunal of 2 June 2005 and requiring the tribunal to redetermine the matter according to law. The Minister consented to the remittal of the matter on the basis that the then Deputy President failed first to identify the best interests of the applicant’s child before balancing his interests against the other considerations.
The second hearing
10. At the hearing of this matter on remittal, the applicant was represented by Nancy Walker, counsel (acting pro bono), and the respondent was represented by Avenish Chand, solicitor, Clayton Utz solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the evidence tendered by the parties at the remittal hearing. Oral evidence was given in person by the applicant. Mr Wood is currently being detained at the Villawood Immigration Detention Centre, Sydney.
Applicable Legislation and Policy
11. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
12. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence
15. At the hearing Ms Walker said that the applicant relied on the existing material before the tribunal in 2005 and now. The applicant gave oral evidence and evidence by way of an affidavit dated 25 April 2006 (Exhibit A3). The applicant also relied on a volume of affidavits, letters of support, etc. prepared for the previous hearing in 2005 (Exhibit A2), including an affidavit sworn on 7 May 2005.
16. At the hearing, the applicant reiterated his early life. He maintained, as he had in his affidavit of 7 May 2005, that he has no memories of New Zealand, although he was almost 11 when he arrived in Australia. He claimed not to know whether he has any aunts or uncles and at the 2005 hearing in this tribunal had also claimed not to know whether any of his grandparents are still living. In his letter to the department dated 16 November 2004 in response to a notice of intention to cancel his visa, he had stated that all his “immediate biological family” are in Australia, a position also taken in his statement of facts and contentions, in which he added that he has no contact with any family in New Zealand.
17. Describing his early life in Australia, he said at the hearing before me that he had “pretty good relations” with his mother and half-sister, but that his father (who he later learned was only his step-father) treated him differently from his sister and frequently denigrated him. When he did something wrong he was severely punished, but his sister, who was is his step-father’s own daughter, was not. In cross-examination he said that he was not punished every day, but only when he misbehaved, “just like any normal kid growing up”.
18. That was at odds with his affidavit of 25 April 2006 (Exhibit A3), in which he wrote, in his own hand, that “This man was brutal and punished me daily”. At the hearing he said he could not remember being bashed, but his mother was abused.
19. When he was 20, his mother’s then current de facto told him that his step-father (Gary Wood) was not his biological father. He then sought out his real father (Kevin Were) but found the relationship with him disappointing as it was hard for him to “fit in”. He said he had committed no offences and not used drugs before that time, but then did begin to break the law. He also began to use marijuana, and after his release from jail in 1997 experimented with heroin, becoming a daily user after a couple of weeks. He had also used “speed” (amphetamines). His crimes were committed to support his addiction.
20. In cross-examination, however, he admitted that he had used drugs before meeting his real father, having begun to smoke marijuana at the age of 14. Banyo High School expelled him for misconduct at the end of Year 10 (affidavit of 7 May 2005). He also had some convictions before meeting his father, starting with possession of a nunchakus (a martial arts weapon consisting of a chain with a handle attached at each end) and a graffiti offence, committed when he was aged 18. He also had convictions for breach of a community service order and for malicious damage. In re-examination he explained that he did not “refer to” those convictions as offences, because they were “really minor”.
21. In November 1997 he met Sonja Willis, with whom he lived in a de facto arrangement until late 2001. A son, Nathaniel, was born of the relationship on 4 November 1999. He is currently aged 6 and lives with Ms Willis, who is now in a de facto relationship with a man named Jason who, according to Mr Wood, is currently serving a prison sentence. The applicant lived with Nathaniel for a total of about six months and says he was closely involved with the child’s care and upbringing. He has not seen him, however, since March 2003.
22. The applicant said that in April 2000, while he was in Silverwater, he was homosexually assaulted by two other prisoners. He did not report the assault, sought no treatment in relation to it and told nobody about it except Sonja. He was unable to deal emotionally with that trauma and in October 2001 attempted suicide by slashing his wrists, spending a week in Gold Coast Hospital recovering. He broke up with Sonja in December 2001, but Sonja was supportive at that stage and invited him back. He did not think she was serious, however, and declined the invitation, but saw her with Nathaniel on Saturdays.
23. In November 2002 Sonja told him that if he could prove he could stay “clean” of drugs for 12 months and stand on his own feet, they might be able to get back together. He was released in February 2003 and was looking for work, but in March 2003 was struck by a car while he was attempting to cross a freeway on foot. He suffered an injured back, his hearing in one ear was affected and he temporarily had palsy in his right eye.
24. He also said that his injuries had resulted in memory loss, with the consequence that although he received the first warning about visa cancellation while he was in jail, he did not remember it, but later became aware of it when he was in custody following his arrest in October 2003 (transcript 1 May 2006 p12).
25. Later in his oral evidence he said he did not think about the warning, and that he forgot about it until he received the second notice of intention to cancel while he was in jail in Queensland (transcript p27). Not thinking about a warning, or forgetting about it temporarily, is not the same as suffering amnesia as a result of a head injury. It is also significant that in his letter of 29 April 2004 in response to the notice of intention to cancel dated 6 April 2004, and in his letter of 16 November 2004 in response to the notice of intention to cancel dated 15 October 2004, he makes no mention of any memory loss or of any inability, temporary or permanent, to remember the warning.
26. Further, the hospital report prepared by Dr Daron Cunningham, neurosurgical registrar, following the applicant’s discharge on 9 May 2003 described the effect of his head injury on his hearing and right eye, but says nothing about any amnesia or other form of memory loss. “He awoke well and was extubated without problems”, Dr Cunningham observed. “He was sent from ICU to the ward on 3 May 2003. This gentleman recovered well on the ward and experienced no significant difficulties”. He had not suffered any intracranial haemorrhage (Exhibit A2 p65).
27. After the accident he began using drugs again as a way of dealing with his back pain. He tried to contact Sonja but was unsuccessful, as she thought he had attempted suicide again and did not wish to resume the relationship.
28. The applicant has two convictions for crimes of violence, the more serious one being for an assault occasioning actual bodily harm committed on 29 August 2002. He was sentenced to 12 months’ concurrent imprisonment on that charge on 29 August 2002. Asked about that offence by Mr Chand, he said that he had accidentally become involved in a fracas when two men he knew plotted with a prostitute, who conducted her business from her apartment in the same building as the applicant lived in with his girlfriend, to rob one of her clients.
29. He explained initially that he and his girlfriend were at the time asleep, then changed the setting and said they were getting ready for bed, when he saw his two friends in the victim’s car. The victim ran out of the building, seized the keys from his car and started to run down the road. David, one of the perpetrators, chased the victim with an iron bar. When the victim tripped and fell, David seized the keys and ran back towards the car with the victim now in hot pursuit. As he was gaining on David, “I just grabbed him and threw him to the ground and started punching him”. (Judge Boyce said the applicant both kicked and punched the victim.)
30. “So you were assisting other people in robbing this man?”, Mr Chand asked. “Yes, because they were my mates and like I was trying to help them get away” (transcript p20).
31. A little later, however, he gave a different version, saying that when the victim was pursuing the intending robbers, the applicant had thought that one of his friends was about to be assaulted (transcript p20). He therefore grabbed hold of the victim. He said he did not know at the time that his friends were attempting to rob the victim.
32. After his counsel had completed her submissions in reply, the applicant asked to be allowed to add some submissions of his own. Although Ms Walker had ably presented his case, I acceded to the request. He said he had statements at home that supported his account of the episode (presumably the second version) and the fact that he was not charged with the same offences as the two intending robbers confirmed his story. He was charged only “because the lady that was there, she told them that I run [sic] out and hit him a couple of times” (transcript p44).
33. Mr Wood conceded that he had offended seven times after receiving the warning of 5 February 2003. He had been sentenced on 6 November 2003 to 12 months’ imprisonment for six offences, and in New South Wales on 11 May 2005 had been sentenced to 18 months’ imprisonment for using a disguise or blackened face with intent to commit an indictable offence.
34. The sentence of 12 months imposed on 11 June 2004, however, was for offences antedating the warning. They resulted from his voluntary offer to clear up a number of offences in Queensland for which he had not been charged. At the 2005 hearing, however, he admitted that he had only taken that step after receiving the notice of intention to cancel his visa dated 6 April 2004. In his sentencing remarks Judge Boyce had remarked that “An important matter is you have co-operated in the investigation of all these matters and made admissions and for most, if not all, there would have been difficulties if you had not volunteered evidence of your guilt” (Exhibit A2 p122). On the same occasion he was sentenced for the assault occasioning actual bodily harm.
35. His criminal record, the applicant said, had resulted from his drug addiction. He had undertaken a drug rehabilitation course while in prison and is currently participating in a program similar to a methadone program, except that it uses a morphine compound taken in tablet form. This drug, apparently, is intended eventually to replace methadone. He is having drug counselling at Villawood, where narcotics are not available, and in any case he could not use them in conjunction with his medication.
36. He would like to rebuild his relationship with his son, who he has not seen since March 2003. He regrets his past misdeeds and if released he would seek employment, such as labouring or factory work. While in jail in Queensland, he worked as a cook and would look into obtaining formal training in that trade. He is also becoming more involved in sports, including boxing, and is currently regularly working out, which helps to keep him focussed.
37. Sonja actively opposes any attempts by him to make contact with his son, so he proposes to apply to the Family Court for access. He does not know his son’s current whereabouts.
38. His sister Carissa needs help, he said, because her fiancé had recently committed suicide, leaving her with three children. If he were released he would be able to help her.
39. He does not appear to be in regular contact with any member of his family. He has had no regular visitors at Villawood, and neither Sonja nor any member of his family came forward to give oral or written evidence at the present hearing. His mother, Mrs Carol Wood, swore an affidavit for the previous proceedings, and his sister Carissa wrote a letter dated 14 May 2005. From the reasons of the learned Deputy President following the 2005 hearing, however, it does not appear that they gave oral evidence on that occasion either.
Problems with the applicant’s evidence
40. A number of difficulties presented by the applicant’s evidence have been noted above. They include:
·The applicant says he has no memories of New Zealand (affidavit of 7 May 2005), although he did not arrive in Australia until he was aged almost 11. He returned to New Zealand on a family holiday in January 1990 at the age of 13. The applicant is articulate, expresses himself quite well in writing and appears to be of at least average intelligence and general mental acuity. In the absence of any expert evidence to account for it, his claim to have no recollection of New Zealand is not credible.
·He claims not to know whether he has any uncles or aunts or whether any of his grandparents are alive. It is not credible that his mother would never have mentioned anything about those matters to him during the 20 years he lived with her. His mother’s affidavit of 12 May 2005 says all his “immediate family members” are in Australia but is silent on whether there are aunts, uncles or grandparents in New Zealand.
·His April 2006 affidavit (Exhibit A3) refers to daily punishments from his brutal step-father. In his oral evidence he painted a different picture, of punishments administered when he misbehaved, with about the same frequency as experienced by other children growing up. His main objection was that his step-sister went unpunished for her misdeeds. His mother’s affidavit of 12 May 2005 (part Exhibit A2) says she never personally witnessed the applicant’s step-father abusing either of the children. He did, however, frequently denigrate the applicant.
·He sought to explain his disregard of the Minister’s February 2003 warning that “ANY further conviction [would] lead to the question of your visa cancellation being reconsidered” (emphasis supplied) by claiming that he had suffered memory loss as a result of being struck by a car in March 2003. At other points in his oral evidence he gave significantly nuanced versions of that claim. The hospital neurosurgeon’s discharge report does not, however, mention any memory problems, nor did the applicant in his two letters to the department in response to the two notices of intention to cancel his visa. The claim is thus probably a fabrication.
·At the hearing he gave in rapid succession two conflicting versions of the events leading to his conviction for assault occasioning actual bodily harm, following his plea of guilty on legal advice. The second version would have relieved him of legal liability, while the first was fully consistent with guilt of the offence charged.
·In his evidence in chief he said he had not committed any offences or used prohibited drugs until he met his father when he was 20 and was unsuccessful in attempting to build a relationship with him. He retracted that claim in cross-examination and re-examination, and then said that he did not regard those incidents as being offences, as they were minor matters.
In view of the above it would be imprudent to give substantial weight to the applicant’s evidence on any contentious matter in the absence of corroboration.
Application of the Law and Findings of Fact
41. At the hearing and in his statement of facts and contentions the applicant did not dispute that he does not pass the character test by reason of s 501(6)(a) of the Act because of his substantial criminal record, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. This was also the finding of the then Deputy President Muller in his decision of 2 June 2005.
42. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Wood’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
43. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
44. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (f) assault or any other form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
45. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
46. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, Mr Wood has an extensive criminal record, accumulated since 1994, including offences for wilful and unlawful damage to property, use threatening or abusive words, break enter and steal, dishonesty, possess instrument with intent to commit an indictable offence, assault occasioning actual bodily harm, malicious damage, robbery, robbery in company and assault with intent to rob. The applicant’s last offence for which he was sentenced to 18 months imprisonment, involved the threat of violence.
47. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; …
48. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;
(b)the repugnancy of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
49. The respondent in her statement of facts and contentions (Exhibit R1) said that the applicant’s offences should be considered very serious, referring to the sentencing comments of Judge Boyce made at the Southport District Court on 11 June 2004, in which he stated that “one indictment has one count of assault occasioning actual bodily harm where you punched and kicked the victim a number of times” (Exhibit A2 p122).
50. The applicant’s criminal record begins when he was 18 and extends over an 11-year period. It includes repeated crimes of dishonesty in which the property concerned has usually not been recovered. He has served approximately five years in prison and the terms to which he was actually sentenced add up to considerably more than that, which again is an indication of the seriousness of his offences.
51. He has always pleaded guilty and voluntarily helped the authorities to clear up a number of offences in Queensland with which he had not been charged. As Ms Walker pointed out, he is not the worst type of criminal, but he has been a burden to the Queensland and New South Wales criminal justice systems and was described by Deputy President Muller in the 2005 proceedings as “a serial pest”.
52. He came from a dysfunctional family background, but unfortunately many youths in today’s society have had, and are having, that experience. But the great majority do not become criminals. He says that he committed his crimes in order to support his drug habit. That is not a mitigating factor, although it may have some bearing on the question of recidivism, which is discussed below. There are no other mitigating factors.
53. As regards the risk of recidivism, paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. In this case, an important aspect of the question of recidivism is the fact that the applicant was given a severe warning about the possibility of being removed to New Zealand in December 2002, when he received a letter from the department notifying him of the Minister’s intention to cancel his visa. On that occasion, it was decided not to cancel his visa but to give him a strong warning that any further conviction would result in the question of visa cancellation being reconsidered and that disregard of the warning would weigh heavily against him. Mr Wood acknowledged receipt of this warning on 12 February 2003 (T p 85). The tribunal notes Mr Wood committed his next crime only three months after persuading the Minister not to cancel his visa and acknowledging receipt of the warning that any further criminal activities would lead to his removal.
54. The applicant has been given many opportunities, in the form of probation, discharge without conviction, community service orders and warnings, to rehabilitate himself, but has thrown away every one of them. Ms Walker submitted that he would be unlikely to re-offend once he became drug-free. He has sought drug counselling and is currently participating in a morphine program that could continue if he is released into the community. He wants to help his bereaved half-sister Carissa and seek access to his son Nathaniel, which he might obtain because there is no history of violence by him towards the child or his mother. He would like to undertake a cooking course at TAFE and there is nothing to prevent him from doing so. He has expressed regret for his offences.
55. The counselling and the drug program are concrete steps in the right direction, but as the program itself involves taking drugs regularly, it would be premature to say at this stage that he is likely to remain drug-free. The rest of his evidence of rehabilitation consists of words rather than deeds. Carissa has not been in regular contact with him and there is no evidence before the tribunal that she would welcome his assistance. His prospects of obtaining access to his son through an application to the Family Court, which might be opposed by the child’s mother, are speculative. The fact that, as was noted above, he made multiple attempts to mislead the tribunal at the present hearing does not suggest that the applicant is a reformed and rehabilitated man.
56. In his oral submissions Mr Chand argued that the evidence pointed to a risk that the applicant would re-offend. In his independent oral submissions to the tribunal (see para 32 above), the applicant rejected the proposition that he represented a high recidivism risk (actually Mr Chand had said “some risk” – transcript pp37, 39). He said that while he was in prison the probation service had assessed his recidivism risk as low to moderate (transcript p45; as it happened, the probation reports were not before the tribunal). But a low to moderate recidivism risk is still a significant risk.
57. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
58. Mr Chand submitted that it was necessary to send a message to non-citizens who might become involved in criminal activity in Australia. The applicant’s personal circumstances had been unfortunate, but he had been formally warned. A line had been reached and it was necessary to make clear the consequences of criminal conduct.
59. Some previous instances of New Zealand citizens whose visas have been cancelled because of criminal conduct have attracted media publicity. Even unpublicised cases such as the present one can help to reinforce the message that privileged entry rights to Australia carry with them the obligation to live within the law, and that disregard of that obligation can have consequences.
Expectations of the Australian Community
60. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.
61. In this case, the applicant has accumulated an extensive criminal record in New South Wales and Queensland. He has been given numerous opportunities to change his ways but has failed to take them. Although he has taken some steps towards drug rehabilitation, they have been while he was incarcerated and one could not be confident that he would not re-offend when at liberty. There is a significant risk of recidivism. In those circumstances community expectations would favour exercising the discretion to cancel the visa.
Best Interests of the Child
62. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child, including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
63. The applicant Mr Wood has a son, Nathaniel Leslie Wood, born on 4 November 1999 and aged six. He lives with his mother, Mr Wood’s former de facto, Ms Willis. The applicant last saw his son over three years ago. He has not paid maintenance for the child since he ceased to live with Ms Willis and does not know the current whereabouts of Ms Willis or his son. In an affidavit dated 7 May 2005 filed with the tribunal in the previous proceedings (File No Q2005/170), Mr Wood stated that the child’s mother would not allow him any contact with his son until he could prove to her that he had ceased his drug habit and was serious about “getting his life back together” (Exhibit A2). He said that he would not be able to do that until released from custody when he could complete a rehabilitation program. He said he chose not to take out Family Court contact orders because he wanted to prove to Ms Willis that he could change. He stated:
I want to support my son financially and emotionally. I do not want him growing up thinking his father has abandoned him or did not care about him. I know from personal experience how this makes a child feel and I certainly do not want Nathaniel growing up feeling as I did. I do not want to see my son making the same mistakes that I have made.
If I am deported then I will lose any chance I have of reforming a relationship with my son.
I further believe that unless Sonja sees the differences in me she will not want anything to do with me. I will not be in a position to show her the changes I have made if I am in New Zealand and prevented from entering Australia.
I love my son with all my heart. I want to play a positive role in his life, emotionally and financially. I want to watch my son grow up and be there for him. I want to do all of the father-son activities like take him fishing and go to his football games. I want to be given the opportunity to do all of the things a good father does.
I have never faced a risk as real as this of losing my son. This is one of my key motivations for rehabilitating and staying out of trouble. It is one of the main reasons I never intend on getting into trouble again by involving myself with drugs or committing crime.
64. In his affidavit dated 25 April 2006 (Exhibit A3), the applicant detailed how he had a loving and caring relationship with his son and that during the periods totalling about six months that he lived with his son between his birth in November 1999 and October 2001, he played a ‘hands-on’ role in Nathaniel’s upbringing. He detailed how he fed him, bathed and clothed him and played with him. Between October 2001 and November 2002, the applicant saw Nathaniel on fortnightly contact visits when he would play with him or take him to the beach. During these visits, Nathaniel would say “I love you daddy”. His last contact visit with his son was at Easter 2003. He states that at that time, the child’s mother refused to see him and refused him access to his son and to date he is not aware of the child’s whereabouts. He stated, however, that he regularly writes to his son, the letters being passed on through a mutual friend. The applicant said he intended to develop that relationship again, even if it meant applying to the Family Court for access. He believed his son needed him.
65. Ms Willis is apparently now in a new relationship with a man named Jason. There is no evidence before the tribunal about the nature or stability of that relationship or of Jason’s relationship with Nathaniel, and indeed there is no evidence from Ms Willis at all. Mr Wood says, however, that Jason has served a sentence in New South Wales for manslaughter and is currently back in jail.
66. The tribunal notes that when Mr Wood received his first warning about possible deportation in December 2002, his son was aged three. He had already been separated from his son for approximately 11 months while he was in custody. Nevertheless, despite the warning from the Minister and Ms Willis’s decision that he could not see his son until he proved that he had “stopped using drugs and was serious about getting [his] life back together” (Exhibit A2), he subsequently went on to engage in further criminal activity. He has not seen his son for over three years as a result of his violations.
67. The respondent submits in her statement of facts and contentions, that “if there was a real prospect of the applicant ceasing his life of crime and giving up his drug habit, the best interests of his son would be served by the applicant remaining in Australia so that he could play a part in his son’s upbringing”. The respondent submits, however, that the risk of recidivism is significant and it is likely that the applicant will re-offend, in which case “the applicant’s son’s best interests is unaffected by whether the applicant remains in Australia or not as the applicant is unlikely to be able to play any real role in his son’s life and could possibly play a negative role as a disturbing influence and a negative role model” (Exhibit R1). The respondent concluded that the best interests of the applicant’s child are outweighed by the other considerations relating to the protection and expectations of the Australian community.
68. The applicant’s commitment to his son has not so far served to dissuade him from breaking the law, and in that event Nathaniel’s best interests would not be served by the applicant’s continued presence in Australia rather than New Zealand. On the other hand, there is the significant possibility that the applicant will reform and rehabilitate himself. Even in the absence of evidence about the quality of Jason’s relationship with Nathaniel or any advance knowledge of any access regime that the Family Court might be minded to establish in the applicant’s favour, it is reasonable to assume that the child’s best interests would be served by not cancelling Mr Wood’s visa. On the other hand, given the significant risk of recidivism, that consideration does not weigh as strongly against visa cancellation as it otherwise might.
Other Considerations
69. Having assessed the primary considerations, the tribunal is required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
70. The applicant’s mother and two step-sisters both reside in Queensland, as does his natural father. Statements were filed in the previous proceedings by Carol Wood, the applicant’s mother and his step-sister Carissa Liane Wood (Exhibit A2), but no updated statements were filed before the present hearing. In her statement, Carol Wood said her son was unable to live with her because of the strained relationship between her son and her de facto husband, but “despite this I will always love and support my son and I believe that if Jamie continues with his rehabilitation this relationship will improve … Despite his past actions however, I am extremely supportive of my son rehabilitating and finally making something of his life”. Neither Mrs Wood nor Carissa Wood made any submissions about the effects or possible effects that removal of Mr Wood would have on them or their family.
71. The tribunal was also asked to consider the applicant’s state of health after being struck by a motor vehicle on 2 May 2003. Mr Wood said in his affidavit of 25 April 2006 that “the accident has left me deaf in my right ear. I have a damaged back and my memory is not as good as it used to be”. Mr Wood said “I believe this accident made me forget the warning from the Immigration Department”. The tribunal notes that clinical notes and the neurological registrar’s report from the Princess Alexandra Hospital, Queensland, were tendered at the 2005 tribunal proceedings (Exhibit A2 p65), but no updated medical evidence was filed. Mr Wood’s evidence that he is currently working out and becoming more involved in active sports, including boxing, suggests that his back may have recovered. For the reasons given earlier I do not think his claim to have suffered memory loss that made him forget the Minister’s warning is supported by the evidence.
72. The applicant is a young man of 30 of presentable appearance, at least average intelligence and ability to cope with life, and in reasonable health. As a New Zealand citizen he would be able to avail himself of educational and other support services in that country. He is young enough to make a fresh start in New Zealand where he is not known and where he would be away from his former criminal associates. If he is serious about reform and rehabilitation, he should be able to obtain work and pursue post-secondary education. He would strongly prefer to be close to his son, but modern communications such as the webcam and email, in addition to older methods, have made it possible for separated family members to maintain stronger contacts than was the case in the past.
73. I find that the primary considerations of community protection and expectations in this case outweigh the best interests of the child and the other considerations. The decision under review should be affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 1 May 2006
Date of Decision 16 May 2006
Representative for the Applicant Ms N Walker, Counsel
Representative for the Respondent Mr A Chand, Clayton Utz solicitors
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