Yimam Shume and Minister for Immigration and Citizenship
[2012] AATA 465
•23 July 2012
[2012] AATA 465
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1973
Re
Yimam Shume
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr M D Allen, Senior Member
Date 23 July 2012 Place Sydney The Tribunal sets aside the decision under review and exercises its discretion not to cancel the Applicant's visa.
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Mr M D Allen, Senior Member
Catchwords
IMMIGRATION AND CITIZENSHIP – visa cancellation – character test – substantial criminal record – application of Direction 41 under the Migration Act 1958 – seriousness and nature of conduct – mature aged first time offender assaulted ex-partner after breakup of relationship – unlikelihood of further offending – low risk of recidivism – decision under review set aside.
Legislation
Migration Act 1958 ss 499, 501
Cases
Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81Secondary Materials
Direction [No. 41] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
Mr M D Allen, Senior Member
23 July 2012
On 30 April 2012 a Delegate of the Respondent cancelled the Applicant’s temporary resident visa on the basis that he did not meet the character test.
Section 501(2) of the Migration Act 1958 states:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act outlines the character test:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
Otherwise, the person passes the character test.
A person has a “substantial criminal record” under s 501(7)(c) of the Act if “the person has been sentenced to a term of imprisonment of 12 months or more”.
In exercising the discretion whether or not to cancel the Applicant’s visa, I am required, pursuant to s 499 of the Act to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
At the time the Minister’s delegate made the decision in this matter, and currently, Ministerial Direction No. 41 regarding the refusal and cancellation of visas under s 501 of the Act is in force.
Direction No. 41 states as its objectives:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
Further general guidance is given in paragraph 5.2(2) of Direction No. 41, namely:
5.2 General Guidance
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian Community; and
(b) the risk of that harm occurring.
Direction No. 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa, the decision-maker shall take into account four primary considerations and seven other considerations.
In these proceedings it was not disputed by the Applicant that, given the nature of his offences and the sentence imposed, he did not pass the character test.
The primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction No. 41 are: the protection of the Australian community from serious criminal or other conduct; whether the person was a minor when they began living in Australia; the length of time the person has been ordinarily resident in Australia before engaging in criminal activity; and, any relevant international obligations.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 10.1 of Direction No. 41 reads:
10.1 Protection of the Australian Community
(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.
Paragraph 10.1.1 reads, inter alia:
10.1.1 The seriousness and nature of the conduct
(2) The following are examples of offences and conduct that are considered serious:
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(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
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In the New South Wales District Court at Parramatta on 25 August 2010 the Applicant was sentenced to a total term of imprisonment of four years with a two year non-parole period for the offences described by Sides DCJ as:
(a)reckless wounding;
(b)being armed with a knife with intent to assault; and
(c)breaking into a home knowing a person was inside and committing the offence of assault occasioning actual bodily harm.
The circumstances leading up to the Applicant’s offending were as follows.
The Applicant was born in Ethiopia on or about 18 April 1960. He left Ethiopia in the early 1990s because of his involvement in political activity. After spending time in refugee camps in Sudan and Kenya he was accepted by New Zealand as a refugee in 2000. In 2005 he was granted New Zealand citizenship.
In September 2007 he “met” a woman resident in Australia on the internet. He visited the woman on a couple of occasions before moving to Australia. In May 2008 he left New Zealand where he was permanently employed and moved to Australia. He lived with the woman in her house with her two children. Apparently the partnership was successful and the Applicant formed a close bond with his then partner’s children.
Unfortunately, the relationship soured in December 2008 as the Applicant was unable to find employment. At the end of March 2009 he was asked by his partner to move out of her house. This he did, although with his ex-partner’s encouragement he continued to visit her children on weekends. Apparently the ex-partner held out some hope of a reconciliation should the Applicant obtain employment.
Notwithstanding his ex-partner’s suggestion of a possible reconciliation the Applicant became aware that she was seeing another man.
On the night of 7 June 2009 the Applicant attempted to contact his ex-partner by phone. When he was told that she was out with a friend, the Applicant went to her home. He questioned his ex-partner’s children about their mother’s whereabouts, found that she was out with another man and the children were in the care of a babysitter. When his ex-partner returned home he attacked her with a knife causing two stab wounds which, whilst requiring suturing, were not life threatening.
After stabbing his ex-partner and whilst still armed with a knife he chased her male companion down the road, but that person was able to out run the Applicant.
The Applicant then returned to his ex-partner’s home where she had secured herself, her children and the 18 year old babysitter inside. After breaking the knife blade attempting to force open a window, the Applicant threw a pot plant through a glass sliding door to gain entry. He then again assaulted his ex-partner.
During these events the babysitter, who was herself only 18, had taken the victim’s children into a bedroom. The Applicant, after assaulting his ex-partner, entered the bedroom and spoke to the children assuring them that he did not intend to harm them but spoke in derogatory terms about their mother.
When police arrived at the scene they found the Applicant in front of the house. He was arrested and later made detailed admissions to police. As stated, the Applicant pleaded guilty to the offences in the District Court.
Quite obviously, the offences committed by the Applicant were serious. In particular the effect upon the 18 year old babysitter and the children must be considered. With respect, I agree with Sides DCJ’s comments that “it is not uncommon for victims and witnesses of an offence like this to suffer long term emotional and psychological disturbances”.
THE RISK THAT THE CONDUCT MAY BE REPEATED
Upon sentencing the Applicant, Sides DCJ accepted that the offences were isolated aberrations, albeit serious offences. He noted the absence of prior convictions and found that the Applicant’s prospects of rehabilitation and not reoffending were good.
Subsequent to committing these offences, the Applicant, who was apparently granted bail, was admitted to the psychiatric wing of Concord Hospital. A report by psychologist Ms Bowden dated 7 July 2010 states:
I have known Mr Shume since August 2009 after his discharge from Concord Hospital where he was admitted from June to July 2009 with depression and suicidal ideation. I have seen him on eighteen occasions for support and management of his depression and anger. During this time he has appeared motivated and his attendance has been regular and punctual.
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From the evidence to date, it appears that Mr Shume is an intelligent man who possesses both excellent communication skills for solving problems and excellent social skills for recognising the rights of others, such that the situations in which he may be provoked into aggressive response appear to be exceptionally limited.
A reference by a Dr Couldwell, prepared for the Applicant’s plea in mitigation on sentencing, reads inter alia:
In all of our interactions, Yiman has communicated and engaged in his health care appropriately and honestly. He has attended his appointments reliably and his adherence to his medications has been excellent. His mood has appeared more positive over the course of 2010 as his depression and immune function have improved. He has developed positive and appropriate relationships, engaged in employment and coped well with difficulties including those associated with his impending trial. I have offered to prepare this reference for Yiman for consideration in his sentencing, as he has demonstrated that he is a responsible, adaptable and insightful man who is likely to make a positive contribution to our community in the future.
Following his discharge from Concord Hospital the Applicant was referred to a charitable organisation, the Western Suburbs Haven. A worker from that organisation has kept in touch with the Applicant during his incarceration. She stated that while at the Haven, prior to sentencing, the Applicant worked hard to find both accommodation and employment, and had bonded with people at the organisation.
In a letter dated 26 June 2012 the Chief Executive Officer of the Western Suburbs Haven states that “if Yimam is granted permission to stay in Australia on his release, The Haven is again able to provide Yimam with temporary accommodation while we assist him with finding longer term accommodation and secure employment”.
As to employment, the Applicant has an offer of employment from the company at which he carried out his pre-release employment.
That the Applicant is intending to seek employment is, in my opinion, a factor in his favour. I note that prior to imprisonment he was in receipt of a disability support pension although undertaking some employment at the Endeavour Foundation as a “supported employee”. It would seem that rather than revert to receipt of a disability support pension, the Applicant is intending to support himself by engaging in remunerative work.
DCJ Sides accepted that the Applicant’s offences were committed in a jealous rage and whilst he was suffering a disturbed mental state, but found the acts were committed intentionally with an appreciation of what he was doing and its consequences.
His Honour did however find that “he has expressed remorse and addressed issues underlying his offending”.
A pre-release Probation and Parole Service report states of the Applicant’s time in custody:
Departmental records indicate that Mr Shume appears to have utilised his time in custody in a useful and productive manner in working towards his release to the community. He has incurred no internal charges and appears to be an inmate who poses no management problem.
That report also states:
Records indicate that he completed the Managing Emotions (men’s version) at Mannus CC on 17 June 2011 where the facilitator reported that he had participated very well during all sessions and share with the group when necessary.
The pre-release report prepared by the Probation and Parole Service states by way of summary:
His apparent lack of insight toward the negative impact his behaviour has had upon his former partner and her impressionable young children remains of considerable concern…
His overall custodial behaviour has been reported as exemplary, progressing to external employment until his recent removal from the program due to his immigration status. Furthermore he has demonstrated some motivation toward addressing his anger management issues by way of completing the Managing Emotions program…
His release to parole is recommended upon the following:
Condition 26: must undergo psychological assessment if so directed
Must not contact or communicate with [the victims] and their families…
Little is known of the Applicant’s life in Ethiopia, and what is known is self-reported. Likewise apart from references from his former employers in New Zealand (which are very positive), little is known of his life in New Zealand. In these circumstances the objective testing carried out by psychologist Mr Taylor assumes a critical importance.
In his report of 23 June 2012 Mr Taylor deals with the circumstances of the offence. I find it disturbing that the Applicant tends to blame his victim for what occurred. According to Mr Taylor’s report the Applicant said his former partner had reacted in a verbally aggressive manner when she found him at her house. Cross-examined in these proceedings, the Applicant said that his ex-partner had said “what are you doing here?” and when he replied had stated that “it was none of his business”. This statement by the Applicant, namely that the victim reacted in a verbally aggressive manner, seems to me to be a classic case of “blaming the victim” mentality and the refusal to appreciate and to fully accept his guilt.
Notwithstanding the above comments, Mr Taylor’s report is entirely positive as regards the unlikelihood of the Applicant re-offending. In his report Mr Taylor stated:
The results of psychometric tests administered to Mr Shume indicate that he does not have a personality disorder or an emotional disturbance… He is no longer suffering from depression. It is also worthy to note that he was not found to have any anger pathology and that when feelings of anger do arise he is more inclined to control or suppress them rather than express them.
The results of actuarial analyses indicate that Mr Shume has a low risk of recidivism in general and a low risk of violent recidivism…
… I have formed the opinion that Mr Shume has a low risk of reoffending in general and a low risk of violent reoffending behaviour. In reaching this opinion I have considered that the circumstances which existed at the time of his previous offending behaviour were very unlikely to re-occur. At the time he was suffering from depression and, although he appears to have had an awareness of the consequences of behaviour, it is likely that he was suffering from impairment in his judgement and control. The results of this assessment did not indicate that he has any problems with anger management, impulse control, or any other psychological factors which might predispose him towards aggressive or violent behaviour.
I have also formed the opinion that Mr Shume has good prospects for rehabilitation. He is motivated to work and stated that the employer where he has attended for works release has told him that he will employ him on a full-time basis if he is not deported. He also stated that he has made arrangements to consult with a psychologist if he is permitted to remain in Australia.
Cross-examined, Mr Taylor stated as to the cause of the Applicant’s offending that, in his opinion, the Applicant had invested a lot in the relationship with his ex-partner and that when he learnt there was another person he felt betrayed. He added that although there is evidence that the Applicant was significantly depressed at the time of committing the offences; the Applicant is not currently suffering from depression.
Given the pre and post sentencing probation and parole reports and the report of Mr Taylor, although the risk of the Applicant re-offending is low, it cannot be said that there is no risk. As to what is a real risk of re-offending, the Full Court of the Federal Court, in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493, pointed out that there was no inconsistency in finding that a risk (of recidivism) was real in the sense that it is not far-fetched or fanciful and that he degree of probability of its occurrence was quantitatively low.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81, Davies J, sitting as President of this Tribunal, said at N133 (authorities omitted):
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again… And even if the risk of recidivism is not high, the risk will strongly support deportation when the recidivism, if it does occur, may cause great harm.
WHETHER THE APPLICANT WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
The Applicant was not a minor when he began living in Australia.
THE LENGTH OF TIME THE PERSON HAS BEEN ORDINARILY RESIDENT
The Applicant arrived in Australia seeking permanent residence in 2008. He committed the offences for which he is currently in prison on 7 June 2009.
INTERNATIONAL OBLIGATIONS
There are no international obligations that apply in the Applicant’s case.
Although the Applicant said he had developed a good relationship with his former partner’s children, he concedes that it is unlikely he will have any relationship with those children in the future. The pre-release report also states that a condition of his parole should be that he must not contact or communicate with his victims or their families.
OTHER CONSIDERATIONS
There are no other considerations applicable to this Applicant.
The Applicant has no family ties in Australia nor does he have any close friends. Were he to be returned to New Zealand, its social security and health systems are equivalent to Australia’s so he would suffer no detriment in that regard.
So far as the Applicant’s level of education is concerned, his Ethiopian degree has been recognised in New Zealand as the equivalent of a Bachelor of Arts degree. Previously he had been able to obtain permanent employment in New Zealand. He also stated that there exists in New Zealand an Ethiopian community association.
CONSIDERATION
The offences committed by the Applicant are serious. No victim impact statement was included in the papers before me, but as pointed out by the learned District Court Judge, the victims of his offences, particularly the children who witnessed the assault upon their mother, are likely to have been traumatised and suffered emotional damage.
Should the Applicant’s conduct be repeated the consequences could be grave. The Applicant was fortunate that more serious injury was not occasioned to his ex-partner.
On the other hand the offence was committed by a person who on sentencing was described as having no prior convictions. After the assaults he waited for police to arrive and co-operated with their investigations and pleaded guilty at the earliest possible opportunity. It was accepted by Sides DCJ that the Applicant had expressed remorse and addressed issues underlying his offending in the period between the offence and sentencing.
Reports from the Probation and Parole Service are positive and the report of Mr Taylor, a psychologist, opines that the Applicant is at low risk of re-offending. Upon release from gaol he will have a support network and has taken active steps whilst in gaol to obtain qualifications that should make him attractive to an employer. As a result of a work-release program he has a job to go to upon release.
The Applicant has a good standard of education and his offences can be said to have arisen whilst he was depressed at the end of a relationship and would seem to have been out of character.
To my mind the Applicant does not represent an unacceptable risk of harm to the Australian community. The decision under review is set aside and the Tribunal exercises its discretion not to cancel the Applicant’s visa.
I have one caveat in respect of my reasons for setting aside the decision under review. At sentencing the Crown did not adduce any evidence of convictions in New Zealand. This may be because there are none or the Crown did not enquire. Likewise in these proceedings, no material was put before me to suggest in any way that the Applicant had any adverse history in New Zealand. I state quite unequivocally that if it had transpired that the Applicant had any history of violence, particularly domestic violence, in New Zealand my decision would have been to affirm the decision under review.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member.
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Associate
Dated 23 July 2012
Date(s) of hearing 12 July 2012 Solicitors for the Applicant R Killalea, KTG Lawyers Solicitors for the Respondent C Darcy, Department of Immigration and Citizenship, Litigation and Operations Branch
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