Quinn and Minister for Immigration and Multicultural Affairs [2000] AATA 389 (19 May 2000)

Last Updated: 25 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 389

) No Q00/200

GENERAL ADMINISTRATIVE DIVISION )

Re CARL TREVOR QUINN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Deputy President DP Breen, Presidential Member

Date 19 May 2000

Brisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant CARL TREVOR QUINN be allowed to remain in Australia.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

- best interests of the child - rehabilitation - ties to Australia - balancing of considerations.

REASONS FOR DECISION

19 May 2000 Deputy President DP Breen, Presidential Member

1. This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 29 February 2000 to cancel the applicant's Transitional (Permanent) Visa under Section 501 of the .

2. This case was heard before me on 2 and 3 May 2000 in Brisbane. Written submissions were received by 4 May 2000 and the matter resumed for submissions in response on 9 May. The applicant, Mr Carl Trevor Quinn, was represented by Mr R Carew, Solicitor. Mr E Howell of the Australian Government Solicitor's Office represented the respondent Minister.

3. Oral evidence was taken from the applicant; Jarrod and Kyle Quinn, the applicant's sons; Mrs J Pallister, the children's foster mother; Mrs S Quinn, the applicant's mother; Ms MA Rose, a Community Correctional Officer; and Ms J Maloney, a Family Services Officer.

4. The following documents were taken into evidence:

* *Exhibit 1 "G" Documents

* *Exhibit 2 Statement of Carl Trevor Quinn

* *Exhibit 3 Statement of Sheila Theresa Quinn

* *Exhibit 4 Statement of Jarrod Anthony Quinn

* *Exhibit 5 Statement of Kyle Frederick Quinn

* *Exhibit 6 Statement of Jacqueline Gloria Pallister

* *Exhibit 7 Statement of Janet Marion Maloney

* *Exhibit 8 Statement of Ms MA Rose, Community Correctional Officer

* *Exhibit 9 Documents from the Corrective Services File

* *Exhibit 10 Documents from the Department of Immigration and

Multicultural Affairs File

* *Exhibit 11 Document of Identity

* *Exhibit 12 Memorandum of Family Meeting

* *Exhibit 13 Prison Breach Report

5. Mr Quinn is 40 years of age and he arrived in Australia from England in 1969 with his parents and brother at the age of nine years. He has resided in Australia since that time. His criminal history began in 1976 and consists of a number of drug and break and enter offences. In 1982 he was convicted of a charge of break, enter and steal for which he was sentenced to 9 months. During that year he was also convicted of stealing with threats of violence whilst armed and in company with the unlawful use of a motor vehicle, for which he was sentenced to six and a half years. In 1996 he was again convicted of stealing with actual violence whilst armed and in company and again received six and a half years after appealing the earlier sentence of ten years.

6. Mr Quinn's mother is now an Australian citizen and resides permanently in Brisbane. His brother travels between Australia, America and England, retaining his British citizenship. Mr Quinn has three children, Courtney, Jarrod and Kyle, who are all Australian citizens. They have not had contact with their mother for the past five years and have been in the care of Family Services since Mr Quinn was taken into custody. Mr Quinn has regular visits with his children, and it was the evidence of Ms Maloney that it is the Department's intention to reunite Mr Quinn with his children in time, if he is to remain in Australia. Mr Quinn has no relatives who reside in England.

7. Mr Quinn's visa was cancelled under Section 501 of the . Section 501 is in the following terms:

"(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.

......

(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

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution."

8. The conviction of stealing with actual violence whilst armed with an offensive weapon and in company in 1996, which attracted a six and a half year sentence, means that Mr Quinn has a substantial criminal record and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 - Visa Refusal and Cancellation under Section 501 applies to the exercise of this discretion.

9. There are three primary considerations under this Direction - protection of the Australian Community, expectations of the Australian Community and the best interests of any children the applicant is involved with in a parental relationship.

10. Considering, firstly, the protection of the Australian Community, it has to be acknowledged that the crime the visa applicant was convicted of is a serious crime involving violence. His criminal history, showing as it does a long association with drugs, is also of concern. However, it is important to note that Mr Quinn was introduced to drugs in Australia, at the age of 14, by a school friend; this is not a habit he brought with him from England.

11. In assessing the risk of recidivism, the Tribunal does have regard to the long time between serious offences, but accepts the applicant's admission that he still had a drug dependency during that time and that all of his criminal activity was related to that drug dependency. The applicant has successfully completed courses in prison on Cognitive Skills, Anger Management and Stress Management. Further, he has participated in substance abuse programs and relapse prevention programs, as well as attending Narcotics Anonymous for the past four years. Whilst in prison he has had only two drug related breaches, both relating to marijuana and the last occurring in 1998. Ms Rose, a Community Corrections Officer who has known Mr Quinn for 12 years, said that she has specifically seen no evidence of him using heroin whilst on home detention. During this time he was working as a labourer for 12 hours a day in the outdoors and therefore in sub-tropical conditions. In her experience no person still using heroin could complete such a task, and in her view the applicant is doing all within his power to overcome this habit, with a positive and realistic plan against relapse.

12. Mr Quinn has the support of his mother and she has offered him accommodation in her house if he were to remain in Australia. He has a diverse range of employment skills, including being licensed to drive a crane, and experience in carpentry and other labouring jobs; as such he should be able to re-enter the work force in a fairly short time frame. The Tribunal accepts that until 1995 Mr Quinn had no idea that his criminal history could require his expulsion from Australia. The Tribunal further accepts his evidence that this knowledge, together with the consequence of possibly loosing contact with his children forever if he re-offends, is the ultimate deterrent. On the basis of the above observations, the Tribunal assesses Mr Quinn's risk of recidivism as acceptably low so as to ensure the protection of the Australian community.

13. The question of general deterrence is not of great weight in this matter. This is unlike cases where the crime is quite notorious or the criminal is a ringleader and the deterrence effect might have a real impact. Most applicants coming before this Tribunal are not aware that their visas can be cancelled due to their criminal behaviour and the facts of this case are such that the cancellation would likely be unknown outside Mr Quinn's immediate family.

14. The second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of, is so abhorrent, it may be appropriate to refuse the visa. Whilst this is a serious crime, it does not come within the class defined as abhorrent and the risk of recidivism, as stated above, is acceptably low. Therefore, the expectations of the Australian community do not preclude the granting of this visa.

15. The final primary consideration is enlivened in this case, as Mr Quinn has three young children who are Australian citizens. These children have a close bond with their father and are looking forward to living with him again. This evidence was provided by the two elder boys and was supported by evidence from their foster mother, from their grandmother, and from Ms Maloney their caseworker.

16. Mr Quinn has been the primary care-giver for his children until his arrest in 1995. He has maintained close contact with them in the last five years. The Department of Families, Youth and Community Care are working closely with Mr Quinn in order to return the children to his care at some time in the future. His plans for the future are realistic and focused on providing a supportive and safe environment for his children. He intends to settle in the area where they now live so that they can maintain contact with their foster family and remain in their school.

17. If the applicant remains in Australia, even after the children are reunited with their father, Family Services will still be overseeing their welfare. Not only will this assist in seeing that the children's best interests are looked after, but it will also allow for monitoring of Mr Quinn's rehabilitation.

18. If the applicant's visa is cancelled, the children will not necessarily go with him to England, thus separating them from their father. Even if they do relocate, it will be to foster care in England for at least some time until the applicant is settled. Although England has a similar culture and standard of living as Australia, such relocation would be quite traumatic for these children, the eldest of whom is only 9 years old. They have already had extensive disruption in their lives and they have a supportive network of family and friends where they now live. As such, the cancellation of the applicant's visa would clearly not be in any of these children's best interest.

19. On balance, the primary considerations give preference to the discretion being exercised in the applicant's favour.

20. There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration. The pertinent secondary considerations are as follows:

(a) the extent of disruptions to the non-citizen's family, business and other ties to the Australian Community;

(b) the degree of hardship which would be caused to immediate family members lawfully resident in Australia;

(c) family composition of the non-citizen's family, both in Australia and overseas;

(d) evidence of rehabilitation and recent good conduct; and

(e) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at Section 200/201 of the Act or the visa refusal and cancellation provisions at Section 501.

21. As stated in evidence, the applicant's family resides in Australia. He has no family or acquaintances in England. Having resided in Australia since the age of 9 years his ties to Australia are very strong, whilst his ties to England are non-existent. He has no accommodation, support or employment prospects in England. Extreme hardship to the applicant would result if the visa were cancelled. Mrs Quinn would loose the contact she now has with her son. Due to her health, she could not return to reside in England and is unlikely, because of her age and health, to be able to visit. If the children go to England with their father, she will also lose contact with her only grandchildren. She has played an active role in their lives to date.

22. There is clear evidence that the applicant is seeking to rehabilitate himself and has made significant achievement in this endeavour over the past few years. At no time before 1995 did the applicant receive any warning in respect of his criminal conduct and its impact on his ability to remain in Australia, despite a lengthy jail sentence in 1982. As such, the secondary considerations are also balanced in favour of allowing the applicant to remain in Australia.

23. The primary and secondary considerations are both balanced in the applicant's favour. For these reasons, the Tribunal sets aside the decision under review. In substitution therefore it determines that the discretion under Section 501 of the be exercised in favour of the applicant and that he be allowed to remain in Australia.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Emma Oettinger

Associate

Date/s of Hearing 2, 3, 8 May 2000

Date of Decision 19 May 2000

Solicitor for the Applicant Mr R Carew of Messrs Carew McKimmie

Solicitor for the Respondent Mr E Howell, Australian Government Solicitor's Office