WVKC and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 393
[2013] AATA 393
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1684
Re
WVKC
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 12 June 2013 Place Brisbane The Tribunal affirms the decision under review.
............................[SGD]...........................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – New Zealand citizen – Failure to pass character test – Cancellation of visa – Discretion to cancel visa – Ministerial Direction No. 55 – Relevant considerations – On balance primary and other considerations favour cancellation – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) ss 499, 501
CASES
Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 260
SECONDARY MATERIALS
Direction No. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
On 26 March 2013, a decision was made by a delegate of the Minister for Immigration and Citizenship (“the respondent”) to cancel the Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) of the applicant who is a New Zealand Citizen. This decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant has now made an application to this Tribunal for the review of that decision.
BACKGROUND
On 5 September 2012, the applicant was convicted of nine sexual offences against children that occurred between 2007 and 2009. The offences included the maintaining of a sexual relationship with a child who is his daughter, the rape of his daughter, the attempted rape of his daughter as well as other offences of indecency involving his daughter and another girl. The applicant was sentenced to imprisonment for six years on the count of maintaining a sexual relationship with a child. He was sentenced to imprisonment for three years on the count of rape as well as imprisonment for four years on the count of attempted rape. He was sentenced to imprisonment for two years on each of two counts of unlawfully and indecently dealing with a child under 16 years of age with the circumstance of aggravation that the child was under 12 years of age. He was sentenced to imprisonment for 18 months on the count of unlawfully permitting himself to be indecently dealt with by a child under 16 years of age with the circumstance of aggravation that the child was under 12 years of age. He was sentenced to imprisonment for 12 months on three counts of indecent charges relating to children.
CHARACTER TEST
Under s 501(2) of the Act:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
I have to consider whether the applicant does not pass the character test within the meaning of s 501 of the Act. For the purpose of this application the respondent relies upon s 501(6)(a) of the Act on the ground that the applicant has “a substantial criminal record”, as defined by s 501(7) of the Act. This is because he “has been sentenced to a term of imprisonment of 12 months or more”: see s 501(7)(c).
The applicant has been convicted and sentenced in relation to nine sexual offences relating to children, with the minimum sentence of imprisonment being 12 months and the maximum being six years. I am satisfied that the applicant has a substantial criminal record under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more. I accordingly find that he does not pass the character test.
Having found that the applicant does not pass the character test, I am now required to consider whether to exercise the discretion in s 501(2) of the Act to cancel the visa of the applicant. In the exercise of this discretion I am required to comply with any Direction that has been issued by the Minister under s 499 of the Act: see s 499(2A).
MINISTERIAL DIRECTION
On 25 July 2012, the Minister issued “Direction No. 55 – Visa refusal and cancellation under s501” (“the Direction”) under s 499 of the Act. This Direction commenced operation on 1 September 2012 and provides that this Tribunal is a “decision‑maker” within the terms of the Direction: see Annex B.
The Preamble to the Direction recites that the objective of the Act “is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: see para 6.1(1). The Direction refers to the definition of a “non-citizen” in s 5 of the Act, which defines a non-citizen to be a person who is not an Australian citizen: see Annex B. It is stated in the Preamble that 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 cancel a visa is enlivened, “the decision-maker must consider whether to exercise the discretion to cancel the visa given the specific circumstances of the case”: see para 6.1(2).
Paragraph 6.2 of the Preamble, which is headed “General Guidance”, contains the following statement:
(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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The “principles” are set out in para 6.3 of the Direction and provide a framework within which decision-makers should approach their task of deciding whether to cancel the visa of a non-citizen under s 501 of the Act: see para 6.2(3).
The principles are as follows:
6.3 Principles
(1) 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.
(2) A 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.
(3) In 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.
(4) Australia 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.
(5) Australia 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.
(6) The 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.
I am satisfied that the applicant is a person who is of “character concern” as referred to in para 6.3(1) of the Direction. Annex B of the Direction provides that the reference to “character concern” imports the definition of “character concern” in s 5C of the Act, which provides that a non-citizen is of “character concern” where that person “has a substantial criminal record”. I have already found that the applicant has a substantial criminal record.
Paragraph 8 of the Direction provides that a decision-maker take into account the “primary” and “other” considerations relevant to the individual case; that “both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”; that “primary considerations should generally be given greater weight than the other considerations”; and that “one or more primary considerations may outweigh other primary considerations”.
Paragraph 9 of the Direction lists a number of primary considerations which may be relevant to the determination of this application. These are:
(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 minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 10 of the Direction lists the “other considerations” which are relevant to the determination of this application. These are:
(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;
…
(c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
CONFIDENTIALITY ORDER
At a telephone directions hearing, the applicant sought a confidentiality order so that the published reasons of this Tribunal do not contain any reference to the applicant. Unless this Tribunal orders otherwise, a decision of the Tribunal is available to the public.[1] It has recently been emphasised that it would not be appropriate to make a confidentiality order to prevent any distress to the applicant.[2] However, in this case I consider that it is appropriate to make an order to prevent the publication of the name of the applicant to protect the identity of the children.
CONSIDERATION
[1] Administrative Appeals Tribunal Act 1975 (Cth), s 35(3).
[2] Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 260 at [19] per Kerr J (President).
Protection of the Australian community
The first of the primary considerations in the Direction concerns the protection of the Australian community. Paragraph 9.1 provides:
9.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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.
(2) Decision-makers should also give consideration to:
(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.
9.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(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) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(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) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(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) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1) In 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 reoffending; 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).
I will consider the first of the primary considerations. The applicant certainly comes within the terms of para 6.3(2) of the Direction which provides, relevantly, that a non-citizen who has committed a serious crime, including of a sexual nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia.
I am also required by the Direction to consider the risk to the Australian community should the person commit further offences or engage in other serious conduct. In assessing the risk to the Australian community I have had regard to a number of reports from psychiatrists.
I give some weight to an early assessment provided by Dr Barbara McGuire, who reported on 18 August 2009:[3]
In view of his expressed belief that it is not wrong to undertake sexual activity with his daughter I believe that there is a significant risk to others in the community.
[3] Exhibit B. Supplementary G-document 2, pp. 8-12 at p. 9.
I place some weight on the opinion of Dr van de Hoef who has written two reports on the condition of the applicant: the reports that she has written are certainly comprehensive.[4] Dr van de Hoef considers that the applicant fulfils the diagnostic criteria for paedophilia. She has also taken account of the circumstance that the applicant had a mental illness but considered that the illness did not completely impair his capacity to know that he ought not to do the act. In her report of 7 November 2011, she concluded that the applicant:
represents a risk to children, especially little girls, even if treated for this mental illness.
[4] Exhibit B. Supplementary G-document 4, pp. 20-39 esp. p. 38 and Supplementary G-document 9, pp. 52-54.
I also place some weight on a more recent report on the condition of the applicant was provided by Dr Geertsema who was the treating doctor of the applicant at the Prison Mental Health Service. The progress notes of Dr Geertsema that were made in September 2012 reveal his opinion that the applicant has:[5]
profoundly poor judgement, lack of insight, unwillingness to engage, learning problems and using alcohol habitually in an attempt to cope, being unable to tolerate frustration and delay gratification.
Dr Geertsema concluded that the applicant:
seems to be at very high risk of relapse in the community implicating possibility of further abuse of people and alcohol.
[5] Exhibit B. Supplementary G-document 27, p. 134
In evidence was a STATIC-99R test assessment completed by the applicant on 14 December 2012. The applicant’s total risk level was scored at “2” or “Low-Moderate”; in the report of this assessment there is a statement that individuals with this score in the normative sample reoffend at 5% over 5 years. I do not consider that the test provides an accurate assessment of the risk of recidivism of the applicant. This is because there are a number of statements in the document that qualify the test, such as “Static 99-R has shown moderate accuracy in ranking offenders such as their relative risk for sexual recidivism”[6] and that the “estimates do not directly correspond to the recidivism rate of an individual offender. The prisoner’s actual risk may be higher or lower than the probabilities estimated in the STATIC-99R depending on other risk factors not measured by this instrument”.[7] In view of these qualifications I cannot regard the STATIC-99R test as providing any accurate assessment of the recidivism rate of the applicant. On its face the test is dependent upon the comments that are provided by the applicant which may or may not be accurate.
[6] Exhibit B. Supplementary G-document 18, p. 92.
[7] Exhibit B. Supplementary G-document 18, p. 99.
I have had regard to para 9.1.1(a) and (b) of the Direction and find that the offences are very serious offences as they were sexual crimes and were committed against minors who are vulnerable members of the community. I place weight upon the reports of Dr McGuire, Dr van der Hoef and Dr Geertsema, which were not contradicted, in concluding that there is a risk that the applicant would reoffend if he is released into the community. It is also a matter of some concern that the applicant had contact with children in breach of a bail condition.[8] In my opinion the risk to the Australian community should the applicant commit further offences is a risk which would be unacceptable: see para 9.1.2(1). I consider that this first primary consideration weighs very heavily in favour of cancellation of the visa of the applicant.
[8] See Sentencing Remarks of Andrews SC DCJ on 5 September 2012.
Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at para 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(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.
The applicant has strong ties with the Australian community in that his father, mother, sister and brother are Australian residents; his sister is an Australian citizen. He arrived in Australia when he was 12 years of age and it appears that his first offending was in regard to the serious offences that he was convicted of in regard to this application. There is no evidence that the applicant has any lengthy employment history. This primary consideration certainly weighs strongly against the cancellation of the visa of the applicant.
Best interests of minor children in Australia
In regard to the third of the primary considerations, para 9.3 of the Direction provides that the “best interests of minor children in Australia affected by the decision” are to be given consideration by the decision-maker.
The daughter of the applicant has suffered sexual abuse at the hands of the applicant; she has also had other physical abuse by being smacked: para. 9.3(4)(g)). The daughter has also suffered both physical and emotional trauma: para. 9.3(4)(h)). The daughter has stated that she does not want to see the father. During the hearing the applicant stated that he would not contradict the allegations which had been made by his daughter. There are other acts of indecency involving a girl who was a friend of his daughter, including an attempt to procure the girl for the commission of an indecent act.
The applicant does not have any relationship with his children and the mother of those children has quite definitely indicated that she does not want any further contact with the applicant. One son of the applicant has stated that he does not want to see his father and the other son is under psychological care. I consider that this third primary consideration weighs very heavily in favour of cancellation of the visa of the applicant.
International non-refoulement obligations
In regard to the fourth of the primary considerations, the Direction provides at para 9.4(1):
In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
There is no evidence that international obligations have any relevance to this application. The fourth primary consideration has no bearing on this application.
Other considerations
Paragraph 12 of the Direction refers to a number of other considerations that must be considered. The applicant has immediate family members in Australia who have a right to remain in Australian indefinitely and they can offer work to the applicant. There is no evidence that there would be any impact on any Australian business interests if the visa of the applicant was cancelled.
The other considerations in para 12 of the Direction is not an exhaustive list of the other considerations that have to be considered. I do not have any evidence about the employment prospects of the applicant in New Zealand. The age of the applicant does not prevent his removal from Australia. There is no evidence of any medical condition that is suffered by the applicant which would operate to prevent his removal from Australia. The applicant is not undertaking any medical treatment. He would be able to obtain medical care in New Zealand. However, he does not have any close relatives in New Zealand who would give him support. The applicant would certainly suffer hardship as he would be separated from his family.
I have concluded that these other considerations weigh slightly against the cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The first primary consideration weighs very heavily in favour of cancellation of the visa. The second primary consideration weighs strongly against the cancellation of the visa. The third primary consideration weighs strongly in favour of cancellation of the visa. The fourth primary consideration has no bearing on this application. After examining the circumstances of this case, I consider that the first and third primary considerations in the Direction outweigh the second primary consideration: see para 8(5) of the Direction. I also consider that the first and third primary considerations outweigh the other considerations against cancellation. Paragraph 11(2) of the Direction provides that these other considerations must be accorded less weight than that given to the primary considerations.
In my view the discretion to cancel the visa should be exercised. Accordingly, the preferable decision is that the visa of the applicant be cancelled pursuant to s 501(2) of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ..........................[SGD]..............................................
Associate
Dated 12 June 2013
Date of hearing 5 June 2013 Applicant In person
Solicitors for the Respondent Sparke Helmore, Mr Will Sharpe
1
1
0