Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 (22 January 2009)

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 47

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5193

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DARREN HARRISON

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr Julian Block, Deputy President

Date 22 January 2009

Place Sydney

Decision

The decision under review is affirmed.

....................[sgd].................
Mr Julian Block
Deputy President

CATCHWORDS

IMMIGRATION – cancellation of applicant’s Special Category visa – failure to pass character test –– evidence of applicant’s criminal record and usage of drugs – risk of recidivism – consideration of the protection and expectations of the Australian community – consideration of interests of the son recently born and other children – consideration of hardship – decision under review is affirmed

Migration Act 1958 – Section 501

Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078

Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942

Re Tirtabudi and Minister for Immigration and Citizenship [2008] AATA 1106

Direction – Visa Refusal and Cancellation under section 501 – No. 21

REASONS FOR DECISION

22 January 2009

Mr Julian Block, Deputy President

PART A - PRELIMINARY AND INTRODUCTION

1. The Applicant seeks the review of a decision by the Respondent’s delegate cancelling the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. That visa was cancelled on the grounds that the Applicant does not satisfy the character test set out in section 501 of the Migration Act 1958 (“the Act”).
2. The Tribunal had before it the “G” documents lodged pursuant to s 501G of the Act; in addition, the Tribunal admitted as exhibits undated statements by the Applicant (Exhibit A1) and his partner Mary-Anne Mahutariki (Exhibit A2).
3. It is necessary at the outset to note that the G documents consist of a lengthy and detailed statement of reasons for the cancellation, followed by attachments which are lettered from A to W (both letters inclusive). Most of the attachments bear, in the right-hand top corner, a handwritten number; in some cases the numbering system runs consecutively forwards, while in other cases the numbering system runs consecutively backwards. Many of the lettered attachments consist of a number of separate documents which are generally distinguishable by reference to the handwritten number previously referred to. In some cases, the nature of the document (and on occasion its date) is included in order to ensure certainty as to the precise document to which reference is made.
4. At a telephone directions hearing held on 19 November 2008 the Applicant was advised in categorical terms that he would not be able to rely on evidence submitted less than two clear business days prior to the hearing. At the same time he was advised of the desirability of legal representation. In fact, the Applicant submitted a number of witness statements within time and including, but not only, exhibits A1 and A2; the Applicant in addition thereafter submitted further statements which were not within time. In respect of those witness statements which were within time, the Applicant elected to call only himself and Ms Mahutariki. It should be noted that this matter was listed for hearing on two days and being 13 and 14 January 2009; the hearing was in fact completed on the first day. The statutory 84th day by which date this decision must be issued is 22 January 2009. The period between the conclusion of the hearing and that date was not sufficient to permit a wait for the transcript and I have prepared this decision in reliance on my own notes made at the hearing.
5. The Applicant was self represented while the Respondent was represented by Mr L Leerdam of DLA Phillips Fox, Lawyers.
6. The Respondent’s Statement of Facts and Contentions dated 22 December 2008 under the head of “Facts” (clauses 2-10) is as a matter of convenience included in these reasons as follows:
   2. The applicant is a male citizen of New Zealand who first came to Australia on 22 March 2001 aged sixteen and eight months.
   3. On 21 June 2006 the applicant was convicted of one count of Maliciously Inflict Grievous Bodily Harm and one count of Assault With Intent To Rob. He was sentenced to two years and six months imprisonment on each count, to be served concurrently.
   4. Including the two abovementioned offences the applicant has been sentenced to a total of seven terms of imprisonment for seven offences in Australia since 2004. Two of these offences involved resisting officers in the execution of their duties, one offence was for robbery and four offences were crimes of violence of which, additionally, one involved robbery and one the intention to commit robbery. His other offences have been of a comparatively minor nature, consisting mainly of traffic offences, property damage and use of offensive language.
   5. On 20 February 2008 a Notice of Intention to Consider Cancellation of a visa (NOICC) under section 501 of the Act, was posted to the applicant at Adele House Rehabilitation, 39A Cornelia Road, Toongabbie, NSW (Attachment D, including enclosures at Attachments E. F. G. H. I, J. K. L and M). The NOICC set out the grounds for cancellation of the applicant's visa and advised him of the opportunity to comment.
   6. On 16 April 2008 the envelope containing the NOlCC and its enclosures was returned to the National Character Cancellation Centre with an Australia Post label of 'return to sender' and ticked 'Unclaimed' (Attachment N). Telephone enquiries by DlAC to the NSW Department of Corrective Services on 30 May 2008 ascertained that the original home address advised for the applicant and his supervising parole office were incorrect and the correct home address and parole office were advised on that date (Attachments 0 and C). As a result, a new NOlCC and enclosures were required to be posted to the applicant at his correct address.
   7. On 23 June 2008 a NOICC under section 501 of the Act was posted to the applicant at 161 Brisbane Street, St Mary's NSW 2760 (Attachment P, including enclosures at Attachments E, F, G, H, I, M, L, C. Q, R, S and T). The NOlCC set out the grounds for cancellation of the applicant's visa and advised him of the opportunity to comment. - the applicant has not responded to the NOICC.
   8. On 1 September 2008 the applicant was posted a letter by registered post affording him a further opportunity to respond by 17 September 2008, to the NOlCC of 23 June 2008 (Attachment U). To date, there is no record that the Department has received a response from the applicant to this correspondence. On 26 September 2008 that letter was returned to the Department with the envelope labelled 'return to sender' and marked "Unclaimed" (Attachment W).
   9. The delegate of the Minister proceeded to cancel the applicant's visa on character grounds on 14 October 2008 pursuant to s 501(2) due to the operation of s 501(6)(a) with reference to s501(7)(d).
   10. The applicant applied to the Administrative Appeals Tribunal on 03 November 2008 to review the delegate's decision to cancel his visa.
7. The Applicant’s criminal record is contained in Attachment J. It relevantly reads, as set out in Attachment J, (but excluding deletions recorded in Attachment J) as follows:

Charge Date	Court Name/Charge Station	Offence	Court Date	Sentence
8/10/04	Burwood Local Court Flemington	Maliciously destroy or damage property >$2000 & <=$5000	22/11/04	Fine: $600 costs – Court: $63
9/11/04	Penrith Local Court Mt Druitt	Resist officer in execution of duty	25/11/04	Convicted S25(2) Warrant to issue
		Use offensive language in/near public place/school		Convicted S25(2) Warrant to issue
9/11/04	Penrith Local Court Mt Druitt	Resist officer in execution of duty	21/01/05	Imprisonment: 3 mths commencing 18/12/04
		Use offensive language in/near public place/school		Fine: $500 costs – Court: $63
23/11/04	Penrith Local Court Mt Druitt	Never licensed person drive vehicle on road – 1st offence	16/12/04	Fine: $300 costs – Court: $63
		Use unregistered vehicle on road area (not a trailer)		Fine: $200
18/12/04	Parramatta Local Court Granville	Unlicensed for class, class C/R/LR/MR – 1st offence	17/01/05	Fine: $500
		Use unregistered vehicle on road area (not a trailer)		Fine: $450
		Use uninsured motor vehicle		Fine: $450
18/12/04	Parramatta Local Court Granville	Warrant W61084236 executed for charge H22264279 (conviction – 61084236)	18/12/04	Warrant executed
05/01/05	Penrith Local Court Mt Druitt	Affray	27/01/05	Convicted S25(2) Warrant to issue
		Maliciously destroy or damage property <=$2000 (3 counts)		Convicted S25(2) Warrant to issue
		Resist or hinder police officer in the execution of duty		Convicted S25(2) Warrant to issue
05/01/05	Penrith Local Court Mt Druitt	Affray	17/11/05	Imprisonment: 6 mths commencing 17/01/05
		Resist or hinder police officer in the execution of duty		Imprisonment: 6 mths commencing 17/01/05
05/01/05	Penrith District Court Mt Druitt	Maliciously inflict grievous bodily harm	21/06/06	Indicted for imprisonment: 2 years & 6 mths commence 16/07/06 conclude 15/01/09 non parole period: 1 year & 3 mths commence 16/07/06 conclude 15/10/07
		Assault with intent to rob		Indicted for imprisonment: 2 years & 6 mths commence 16/07/06 conclude 15/01/09 non parole period: 1 year & 3 mths commence 16/07/06 conclude 15/10/07
17/01/05	Parramatta District Court Burwood	Robbery in company	9/11/05	Imprisonment: 36 mths concluding 16/01/08 non parole period: 18 mths commencing 17/01/05 concluding 16/07/06
		Assault with intent to rob in company		Imprisonment: 36 mths concluding 16/07/08 non parole period: 18 mths commencing 17/07/05 concluding 16/01/07
18/02/05	Penrith Local Court Penrith	Warrant W61117974 executed for charge H22853426 (conviction 61117974)	18/02/05	Warrant executed
		Warrant W61117982 executed for charge H22853426 (conviction 61117982)		Warrant executed
18/02/05	Penrith District Court Penrith	Maliciously inflect grievous bodily harm	21/06/06	Indicted for imprisonment: 2 years & 6 mths commence 16/07/06 non parole period: 1 year & 3 mths
		Assault with intent to rob		Indicted for imprisonment: 2 years & 6 mths commence 16/07/06 non parole period: 1 year & 3 mths

8. Although the Applicant’s criminal record includes a considerable number of convictions, some of a comparatively minor nature, a considerable part of the hearing focused on what might aptly be described as the more serious convictions. In this particular regard:

(a) On 9 November 2005 the Applicant was convicted in the Parramatta District Court of robbery in company and assault with intent to rob in company. Sentences of 36 months were imposed in each case; the presiding Judge also set non-parole periods, the effect of which was that the Applicant became eligible for parole on 16 January 2007. These offences were referred to during the hearing as the “train offences”, more particularly because they related to robberies on a train; the sentencing remarks of His Honour Judge Ellis appear at Attachment M and extracts from his remarks are included later in these reasons.
(b) On 21 June 2006 the Applicant was convicted in the Penrith District Court of maliciously inflicting grievous bodily harm and assault with intent to rob. In each case he was sentenced to a term of imprisonment of two years and six months; the presiding Judge in addition set a non-parole period which concluded on 15 October 2007. These offences were referred to during the hearing as the “victim offences”. The sentencing remarks of His Honour Judge O’Reilly appear at Attachment L and extracts from his sentencing remarks are also included later in these reasons.

9. It is relevant to note that although the hearings referred to in the preceding clause took place some time after the commission of the train offences and the victim offences, those offences took place in point of time, in the case of the victim offences on 8 January 2005 and in the case of the train offences on 16 January 2005, and in both cases at a time when the Applicant was on bail.
10. In respect of the sentencing remarks of Judge Ellis (Attachment M) I include an edited extract taken from pages 34, 33 and 32, as follows:

... In relation to the matters on the indictment, the facts are, in brief, during the late evening of 16 January 2005, both offenders and their co-offenders were travelling on a city bound train. In relation to the robbery in company count one the victim of that matter, a Mr Madadi, boarded the city bound train at Parramatta. The accused Vaalele confronted him. A demand was made for property. The co-offender Mr Harrison and the other two co-accused joined Mr Vaalele. A mobile phone was handed over, a demand was then made for a wallet and both this offender and one of the co-offenders rummaged through the wallet, but no money was located.
As the train approached Lidcombe station, the victim stood up and indicated he had to get off at Lidcombe. He was grabbed by Vaalele, forced back into his chair and then punched to the face by Vaalele with a clenched right fist.
Count two occurred shortly before count one, five minutes or so on the same city bound train. The offender and co-accused and another approached the victim Yoon, they sat next to him and then followed him when he moved to another section of the train. He was carrying a skateboard and the offender Vaalele took hold of that skateboard. Yoon resisted, he was then struck by Vaalele to the left side of the head. He was then struck a number of times by all of the accused. He was placed in a headlock by Vaalele, the co-accused continued to punch and kick him. The offenders then left without taking any of Mr Yoon’s property. Mr Yoon suffered bruising to his face, head and body.
...
The offenders were subsequently arrested when they left the train at Strathfield after a number of the victims had complained and indeed Mr Vaalele was found with property of the victims on his person.
The seriousness with which the community rightly regards the offence of robbery in company and assault with intent to rob is reflected in the maximum penalty of twenty years imprisonment. That these men were in company and were physically aggressive, no doubt engendered significant fear in each of the three victims, and they were no doubt terrorised and indeed traumatised by these robberies. Courts in this State have long favoured a stern approach to serious offences of this type. The sentencing pattern for such offences reflects concern regarding their prevalence, and the recognition that devastating psychological harm is often the consequence for the victims of such crimes.
...

The presiding judge referred also to the Applicant having an abusive stepfather; the Applicant in referring to his immediate family in oral evidence referred to his father, mother and brother and sister; he also said of his father that he was in and out of gaol.

11. In respect of the victim offences and the sentencing remarks of His Honour Judge O’Reilly I refer to Attachment L. I include in this context to an extract taken from pages 48, 47 and 46 as follows:

What happened was that on 8 January ’05 he went to a home unit in Aycliffe Avenue Hebersham in the company of a man known as Cliff. The tenant, one Sharn Ramea had left the premises before the arrival of the prisoner and the man Cliff. The victim in this matter and the lady Sharn Ramea previously had a relationship from which they had a young daughter. Now it is the prisoner who has a relationship with Ms Ramea.
When the prisoner arrived at the premises, the victim was playing cards. The prisoner and Cliff joined the game. Alcohol was being consumed and plainly, on any view of it, quite a good deal of alcohol. Then a little later the prisoner and the man Cliff left the premises to look for Ms Ramea. Later they returned and the group continued to play cards and drink. Then the prisoner said to the victim “Do you wanna come for a walk with me and Cliff to find Sharn?” The victim agreed and they left the premises. The man Cliff walked ahead, he did not play any part in what happened.
Then out of the blue as it were, the prisoner said to the victim “Do you wanna start?” That was not very specific as to what he was said to be wanting to start but plainly from what happened he had meant ‘Do you want to fight me?’ So the victim replied to this “No I don’t wanna start.” The prisoner then punched the victim on the left cheek area – I have seen the photographs which have been tendered and they show significant swelling and so on and the fact is that he suffered fractures to his nose and facial bones, so it is quite a serious assault.
As to the intent to rob part of the second count, the Crown relies on the victim being put in fear by reason of these antecedent I will call them, antecedent punches. The prisoner said to the victim “Stay away from Sharn and Tenecia” that is the little girl, the daughter, “or I’m going to kill you and your family.” Then there was more punching to the facial area.
They went back towards the home unit premises and the prisoner said to the victim “Give me what you’ve got in your pockets.” But there was nothing to give. He was taken back into the home unit and the prisoner told him to go and have a shower which he did. In the bathroom he noticed the blood on his face and the bruising, swelling.
The victim then walked home. He seems to have fallen asleep on occasion. The family called the police and an ambulance and at hospital he was noted to have a fracture to the left cheek bone, fractures to the top of the left jaw – I assume that is the upper jaw, a fracture to the bridge of the nose.
The prisoner was spoken to on 18 February ’05 and placed under arrest. He engaged in an interview and it is common ground that he made various admissions to the more salient parts of the offences. He did say that he had been consuming alcohol during the day with his cousin. He told the police that the victim began to “get smart”. Now the getting smart apparently means talking about the lady Sharn and this caused the offender to punch the victim several times. He agreed that he asked the victim what was in his pockets and he said that he, that is the prisoner, did check by feeling the pockets.

PART B - THE EVIDENCE OF THE APPLICANT – EVIDENCE IN CHIEF

12. The Applicant’s evidence in chief consisted almost entirely of his confirmation of the contents of Exhibit A1 which is therefore included in these reasons in full as follows:

My name is Darren Harrison and I am writing this letter in regards to the cancellation of my visa that took place on the 31st October, 2008 stating that I failed my character test on the grounds that I may be a threat to the community.
On 21st June 2006, I was convicted of Maliciously Inflicting grievous bodily harm, Assault with intent to rob, and Robbery in company, for which I served 2 years and 9 months and was released from the John Marony Correctional Centre on a 12 month parole period.
First of all I would like to state that yes, I admit that I am guilty of having done wrong and my actions were irresponsible. I believe that although I do not have anyone to blame but myself I was very easily influenced by the crowd that I associated with and was under the influence of drugs and alcohol when these crimes occurred during that period of time in 2005. I deeply regret my past actions but do not feel that my past should be a reason to affect the rest of my life.
I believe that everyone deserves a second chance, a chance to make a change. I have so much more now to live for than I ever have. My partner Mary-Anne Mahutariki and I have been together for a year now and we are expecting our first child together, which means the world to me. I believe Mary-Anne is very supportive and has become a big influence in my life, having come from a Christian family, encouraging me to stay away from drugs and alcohol, taking me to church with her and helping me make smarter choices, for the sake of our family.
She encouraged me to attend the rehabilitation program that I began at the Kedesh Rehabilitation Centre on the 9th September 2008, with the intent to stay clean, but was suddenly removed from by the Department of Immigration on the 30th October, 1 week and 1 day prior to completing the program and brought here to the Villawood Immigration Detention Centre.
I was raised in an unstable family who didn’t care about what I did or who I was with and I was moved from one family member to another. I ended up spending most of my childhood with my grandparents until I made the decision to try and start a new life here in Australia with my ex-partner and our daughter [name omitted], who is now 7 years old and lives in Melbourne with her mother.
[not legible] everyone we know and have become comfortable with behind. Leaving Australia would also mean that I may never get the chance to see my daughter again.
Mary-Anne and I had planned our lives to some extent. I was scheduled to complete the Rehabilitation program on 7th November 2008. I had a job lined up operating a forklift with Postal Logistics and was expected to start work on the 10th November 2008. I had every intention of working and saving money as we awaited the arrival of our son on the 9th January, as well as the end of my parole on the 17th January 2009. We had decided that after all these things we would try and make a fresh start in Cairns Queensland to raise our son and my partner’s daughter [name omitted], together as a family and have talked about marriage in the very near future.
I realise that I cannot erase the past, but I ask that I be given the opportunity to prove that I am a capable, responsible young man who only wants to love and support my family, and with the support of my partner, friends and family I believe that all things are possible. Your kind consideration would be greatly appreciated.

13. In amplification of Exhibit A1 the Applicant said that he went into a rehabilitation program in September 2008, but that he was detained by the Immigration authorities and sent to Villawood in October 2008. He said that in September 2008 he had been out of prison for 13 months, having been released on parole in October 2007. He was granted parole subject to conditions which included a total ban on drugs and alcohol.
14. The Applicant said also that he came to Australia in 2001 when he was 16 in company with his former partner Narissa and their daughter. He had been to school in New Zealand up to Year 11, but had been obliged to leave school when Narissa became pregnant. After arriving in Australia the Applicant, Narissa and their daughter settled in Melbourne and where he was apprenticed as a roof tiler. Although according to his evidence he completed his apprenticeship, he has not in fact worked as a qualified roof tiler.
15. The Applicant said that he parted from Narissa in 2004 and came to Sydney where he resided with his grandmother. He said that he has not seen Narissa or his daughter at any time during the ensuing years, but that he did pay child support for his daughter at the rate of $80.00 per fortnight for about a year from October 2007.
16. The Applicant said that the train offences and the victim offences occurred while he was on bail in respect of a charge of driving under the influence of alcohol and which occurred in 2004. (It may be noted that the Applicant’s criminal record does not record a conviction for driving under the influence.)
17. The Applicant said that he had breached his parole conditions in that he had used drugs and in particular cannabis and methyl amphetamines.
18. Much of the preceding evidence was given in response to questions by the Tribunal which sought to lead the Applicant through his evidence. When asked whether he wished to say anything further by way of amplification of exhibit A1, the Applicant said that “everyone deserves a second chance”. He went on to say that he has more to lose now that he has a son (born on 7 January 2009) and that his partner Ms Mahutariki has encouraged him to come off drugs and alcohol and that as regards drugs he has been “dry” since he went into rehabilitation.
19. The Applicant also said that if sent back to New Zealand he would not be able to see his daughter. He said that it would be hard for him and Ms Mahutariki in New Zealand, noting that she would be accompanying him, but without specifying the hardship to which he wished to refer.
20. The Applicant said that if he had not been detained and sent to Villawood he would have completed the rehabilitation program in November 2008 and that he would then have been able to obtain a job as a forklift driver with Postal Logistics.
21. The Applicant said, moreover, that he was raised in an unstable family. He concluded by saying that he now has something to live for; he referred in particular to his recently born baby son.

PART C - THE EVIDENCE OF THE APPLICANT – CROSS EXAMINATION

22. The Applicant said that he first arrived in Australia in March 2001 with his then partner and their daughter. He said that he had no family in Australia, but that he has his father and mother and a brother and a sister in New Zealand. He was asked whether he remained in touch with them and his answer was “not really”, but that he did contact them on one occasion when he was released from gaol in 2007.
23. The Applicant’s grandparents moved to Sydney after the Applicant took up residence in Melbourne. After leaving Narissa in October 2004 and after breaking with her, the Applicant moved to Sydney to stay with his grandmother in St Marys. (Although the Applicant has both a grandmother and a grandfather in Sydney he almost invariably referred only to his grandmother).
24. The Applicant’s relationship with Sharn (who is relevant in relation to the victim offences) began at the end of 2004.
25. The Applicant was then cross-examined as to a number of his less serious offences. I do not think it necessary to deal with that cross-examination otherwise than in brief terms. Having moved to Sydney in October 2004, he was not long thereafter convicted of malicious damage to property and involving graffiti. In November 2004 he was convicted of resisting arrest when, so he said, he went to the aid of a cousin who was being arrested and “he was doing nothing”. In January 2005 and while he was on bail for the driving offence, he was convicted of damaging property and hindering the police. In November 2005 he was convicted of resisting or hindering police and of affray, and he was sentenced to a term of imprisonment of six months commencing on 17 January 2005.
26. The Applicant admitted that he was on bail when he committed both the train offences and the victim offences.
27. The Applicant said that in relation to the victim offences, the victim was Sharn’s former partner. He found the victim at Sharn’s home playing cards; he asked him to come for a walk and during the course of which he assaulted the victim. The Applicant was asked why he had done so and his answer was that the victim had punched Sharn. It was put to him that Sharn was not at her home at the time; he replied that Sharn was just leaving when he arrived. He agreed that this is the first occasion upon which he has ever sought to contend that his assault on the victim was by way of retaliation or punishment. It was put to him that this allegation was in direct contradiction of the presiding Judge’s sentencing remarks; when he was asked why he did not say anything at the time he said that this was “because I don’t give up people”.
28. The Applicant again denied (contrary to the relevant sentencing remarks) that he had tried to rob the victim. The Applicant was also referred to the relevant sentencing remarks and in particular to a passage in which the judge referred to the fact that the Applicant was using heroin, ice and ecstasy to the extent of $1000 per week as to which the judge said that the source of the necessary funds had not been indicated.
29. The Applicant was asked as to the source of $1,000 per week for drugs. It was noted that he was not working at the time. He answered: “I didn’t pay for any of this. I know people who worked around these things”.
30. The Applicant was then asked what he had to do to get “these things”. He answered that “I was selling drugs in order to make money”.
31. The Applicant agreed that he sold drugs to other people in order to pay for his own drugs. When asked what amount would have to be sold to realise a profit of this magnitude he answered that this would depend on the nature of the drugs sold. He went on to say that “ice” has a street value of $500 per gram.
32. Mr Leerdam pointed out to the Applicant that the presiding judge had found that the Applicant intended to rob the victim and put it to the Applicant that he did so to feed his own drug addiction. The Applicant’s answer was that “I was trying to get money from anywhere for drugs”.
33. It was then put to the Applicant that he had in this hearing previously given evidence that he did not intend to rob the victim; he admitted that he did feel the victim’s pockets in order to rob him.
34. The Applicant said that he had been dealing in drugs from the end of 2004 until he went to gaol.
35. The Applicant said that his relationship with Sharn ended in October 2007, just before he got out of gaol. This occurred, so he said, because she told him that she was then pregnant by another man.
36. His Honour Judge Ellis (Attachment M, page 28) noted that the Applicant had undertaken the “Enough is Enough” program; at page 27 he noted that the Applicant wished to participate in the “Violent Offenders Therapeutic Programme” and also that the Applicant had undertaken that he would not resume using drugs and alcohol on his release from gaol. The Applicant said that “Enough is Enough” relates to anger management but that he did not enter the “Violent Offender” program because there was a wait period. He did not explain why he did not take the “Violent Offender” program after the wait period.
37. When asked what his behaviour was like in gaol he described it as “pretty standard”. He said that there were three charges of damaged property which he described as cutting up sheets and charges of “dirty urine” which arose from his using cannabis. When asked where he procured the drugs he answered that he got them from other prisoners on a “favour for favour” basis. When asked what favours he did, his answer was that there were no favours and the providers were just friends. Page 100 of Attachment T indicates that there were more offences than those indicated committed by the Applicant when in gaol; the relevant extract from page 100 reads as follows:

The following information is in relation to the offender’s incarceration. Please note that not all information requested was available to this office at the time of this report.
Incidents –
24.7.06 – Fail Urine Test
21.8.06 – Damage, destroy property
30.9.06 – Disobey direction
8.10.06 – Disobey direction
6.12.06 – Damage, destroy property
1.1.07 – Fail comply correctional routine
22.2.07 – Damage, destroy property

38. The Applicant’s current relationship with Ms Mahutariki commenced in February 2008. He said that he did not work when he was released from gaol (leaving aside a period of two months in a “cash under the counter” job with an aunt) and that he relied on Centrelink payments. He lived with his grandmother.
39. The Applicant agreed that when he was released from gaol in October 2007 he was on parole and that it was conditional. He was required to report at regular intervals and to furnish urine samples.
40. Attachment T is a large attachment consisting of a number of breaches of parole progress reports, and similar documents and including references to a considerable number of breaches of his parole conditions, warnings relating to those breaches and including warnings that his parole might be terminated and that he would then and in consequence have to serve the remainder of his gaol sentence.
41. The Applicant’s cross-examination in this regard was lengthy and comprehensive. I do not think it necessary to refer to all of that cross-examination or for that matter all of the content of Attachment T; a number of examples in this context will suffice:

(a) Pages 99 and 98 of Attachment T under the head of “Response to Supervision” included in a report dated 26 November 2007 read as follows:

Mr Harrison has reported, as directed on the 16/10, 22/10, 29/10, 5/11, 14/11 and 23/11/07 with his next reporting date being 30/11/07. During interview on the 16/10/07 he advised that he had used cannabis on the day of release, however, during interview on the 22/10/07 he stated that he had used cannabis the day prior to release. During interview of the 14/11/07 the parolee stated that he had used marijuana the previous weekend.
Urinalysis results taken on the 22/10/07 detected marijuana use. Urinalysis results taken on the 2/11 noted cannabis metabolite. However, the same was dilute which did not necessarily imply adulteration. However, subsequent urinalysis on the 12/11 and 19/11/07 detected cannabis metabolite, the latter being with some reduction in the creatinine ratio. Further urinalysis is scheduled.
Mr Harrison was referred to SydWest Area Health Services for twelve weeks of relapse prevention whilst awaiting commencement of this Service’s Drug and Alcohol Group Work Program.

RECOMMENDATION
It is commendable that Mr Harrison has adhered to a positive reporting pattern in addition to undertaking regular urine analyses. However, the possibility of his reverting to marijuana use does not bode well so early in his release to parole.
It is, however, respectfully recommended that a warning letter be forwarded. Should further infringements occur the Authority will be notified.
...

It was pointed out to the Applicant that he had used drugs from his release. His answer was that “I don’t know how to stop”.

(b) The Applicant was referred to a letter at Attachment T page 100 dated 6 December 2007 reading as follows:

Dear Mr Harrison
I am writing to you at the direction of the Parole Authority following receipt of advice that you have not been fully complying with all the conditions of your parole order.
The Parole Authority directs that you abide by all directions given by your Probation and Parole Officer and adhere to all conditions of your parole order, particularly in relation to your illicit drug use.
Further, the Parole Authority directs that you be warned that any breach of your parole order may result in is revocation and your return to a correctional centre to serve the remainder of your sentence.
You are asked to discuss this letter with your supervising Probation and Parole Officer.
...

He was asked whether he received this and other warnings and agreed that he did, but repeated that he did not know how to stop using drugs.

(c) Attachment T pages 103 and 102, a report dated 7 March 2008, under the head of “Response to Supervision” read as follows:

Mr Harrison has reported to this Service as directed and has been the subject of random urines since his release to parole. On 26 November 2007 this Service submitted a breach report informing the Authority of Mr Harrison’s positive urine results for cannabis. Subsequently, the Authority issued a warning letter, which was explained to Mr Harrison.
On 8 February 2008, the offender was directed to undertake urinalysis, which he did. Prior to this he again disclosed his ongoing use of cannabis. Mr Harrison was again warned about his use of this substance. During the interview he was also asked about his alcohol use. He stated that he had consumed alcohol over the Christmas and New Year period. Mr Harrison was again warned about the use of alcohol and the impact that it has on his behaviour and as such was directed to not consume any alcohol. On 20 February his urinalysis returned a positive for cannabis and methyl amphetamine. During interview on 27 February, Mr Harrison was asked to explain his drug use. At first he denied any use of methyl amphetamines, however, when challenged he stated that he has been smoking methyl amphetamines and cannabis since his release.
Mr Harrison agreed to be referred to the Pacific Islander Program at the Mt Druitt District Office, upon further discussions he also agreed to contact the Nepean Drug and Alcohol Service to be assessed for an appropriate treatment plan that will address his illicit drug use. He was also directed to see if he would be suitable to enter in the 5 day detoxification program.
On 24 December 2007 and 17 January 2008, Mr Harrison was directed to resume his attendance with the relapse prevention program. On 8 February 2008, Mr Harrison informed this Service that he had not attended the relapse prevention program due to some short term employment as a forklift driver. This Service is still awaiting a payslip/confirmation of his said employment.
Contact with Nepean Drug and Alcohol services indicated that he attended the relapse prevention program on 7, 14, 21 and 28 November 2007, with no further contact.
On 4 March 2008, contact was made with his employment agency and it was indicated that Mr Harrison appeared to be manipulating the agency, claiming that he was unable to attend due to his obligation with this Service. When further explored, Mr Harrison appeared to be avoiding his responsibility to the agency and lacked the motivation to seek work. His case worker confirmed that when he last reported to her that his ‘eyes were a bit glassy’.
This Service will continue to undertake urines and monitor his drug use, and will refer him to the Pacific Islander Program and the Community Compliance Group. Mr Harrison has also been directed to seek assistance with his drug use at the Nepean Drug and Alcohol Service.
On 5 March 2008 this Service contacted his grandmother, and during this conversation she stated that she believed that her grandson was doing well. Further discussion again indicated that Mr Harrison was not forthcoming with information and in fact had provided this Service with false information.
On 7 March 2008 he attended for urine and stated that it would be free of methyl amphetamines, however, positive for cannabis. He was challenged about falsifying information and was unable to provide a reasonable explanation regarding his lies. Mr Harrison was given a direction to cease using methyl amphetamine immediately, a curfew to return home by 10pm Monday to Sunday, and to actively seek employment.
Recommendation
Mr Harrison has already received one warning letter specifically addressing his illicit drug use. It is of concern that he has not been forthcoming with information about his regular use of substances, coupled with his attempt to deny his use of methyl amphetamine. According to the most recent urinalysis the THC level for cannabis has dropped significantly, however, this appears to be a pattern in his use.
At present, there are concerns in relation to his drug use and his attitude. However, this Service has given Mr Harrison a clear direction to address such.
The Authority may wish to afford Mr Harrison another opportunity to address his issues and conform to a law abiding lifestyle. In doing so it is recommended that a progress report be submitted in six weeks. However, should the offender’s behaviour escalate, the Authority will be immediately informed.
...

The Applicant was asked where he obtained the drugs. He said that he got them from friends and being the same people from whom he had obtained them previously (it will be noted that page 102 of Attachment T refers to methyl amphetamine and cannabis). The Applicant again said that he did not know how to stop using drugs.

(d) The Tribunal refers next to pages 105 and 104 of Attachment T, a report dated 28 April 2008, under the head of “Response to Supervision” reading as follows:

Mr Harrison reports to this Service as directed. He has attended for assessment and has been accepted into the next Pacific Islander’s Program which is due to commence at Mt Druitt District Office on 6 May 2008. He reported that he has found some casual work and said he is hoping to commence soon but as it is through a family member he was not sure of the details. The offender also reports commencing a new relationship which appears to be positive and supportive, but still in the early stages.
Despite his good presentation and his compliance with reporting directions, there are a number of concerns regarding his behaviour. Telephone contact with the employment agency indicates that the offender has not reported to them as arranged. This Service was informed that the offender attends the agency when they warn him that his failure to attend will result in the cessation of his Centrelink benefits.
Mr Harrison has provided regular urine specimens on 8 February 2008 and 7, 20 and 28 March 2008, and 14 April 2008. The results have shown consistent Cannabis use, however, it was noted that the level of THC was reducing. Of concern is that on 8 February 2008, and 14 April 2008, results also showed positive for methyl amphetamines. Mr Harrison has stated that he smoked methyl amphetamines on the odd occasion and indicated that he did not think there was a problem. He appears to have a nonchalant attitude, stating that he is making some effort in order to stay clean but is having some difficulty. Entry into a rehabilitation unit has been discussed with Mr Harrison, however, he maintains that he is a casual drug user and that he will not be able to complete any residential program. Further to this information, the offender is not maintaining the curfew he was directed to comply with, stating that on occasion he will stay with a family member or with his partner.

The Applicant agreed that he did not attend the Pacific Islander Program. When asked why he did not do so he said that it took place in the evenings. He agreed that he was not working but said that he did not attend because he did not think the program was relevant.

(e) The Tribunal further refers to page 106 of Attachment T which is a warning letter dated 8 May 2008 reading as follows:

Dear Mr Harrison
I am writing to you at the direction of the State Parole Authority following receipt of advice that you have not been fully complying with the conditions of your parole order.
The Parole Authority directs that you comply with all conditions of your parole order and abide by all directions given by your Probation Officer, particularly in relation to drug use and compliance with all conditions of parole.
Further, the Parole Authority directs that you be warned that any additional breach of your parole order may result in its revocation and your return to a correctional centre to serve the remainder of your sentence.
The Parole Authority will review your case again on 12 June 2008 and has requested a progress report on your conduct from your Probation and Parole Officer.
You are asked to discuss this letter with your supervising Probation and Parole Officer.

(f) Referred to page 102 of Attachment T he was asked why he did not make contact with the persons running the Nepean Drug and Alcohol Service and his answer was “I don’t know”.

42. The Applicant agreed that he received various parole reports. When asked in relation to page 107 of Attachment T (which has not been quoted in these reasons) whether he was not concerned about contact between the parole authorities and the immigration authorities as to breaches of his parole conditions, his answer was “not a chance”.
43. The Applicant denied that he ever received any of the notices threatening cancellation of his visa. He said that there had been notices to collect documents which would have been received by his grandmother, but that she did not collect them and that he became aware of this possibility only when he was detained.
44. It was then put to the Applicant that he went into rehabilitation only because he was concerned about the cancellation of his visa; his answer was that he went into rehabilitation “because it was a final warning”.
45. When asked what he would do in New Zealand if he had to return there, he answered that “I wouldn’t have a clue”. When asked whether he could obtain work as a roof tiler his answer was “they are not paid very well”. When asked whether he would use drugs in New Zealand he answered that he presumed so because all of his family used it and it was normal. As he put it, “it’s our family trade – drugs and gangs”.
46. The Applicant said that his current partner Ms Mahutariki came to Australia from the Cook Islands. He said also that she went to university, has a bachelor degree and that before giving birth to their son was the manager of a shop.
47. When asked whether he would see his daughter he said he would do so when released from Villawood.
48. Again asked about a return to New Zealand, he said that it would be difficult because he would have to find accommodation. His attention was drawn to the fact that in Exhibit A1 he said that he and Ms Mahutariki intended to settle in Cairns where Ms Mahutariki’s father has property.
49. It was put to the Applicant that he breached his parole conditions on many occasions. His answer was “I didn’t care”. He said that although he has used drugs consistently for a long period, he must change now that he has a son because he would not want his son to be in a house where there are drugs.

PART D - THE EVIDENCE OF MS MAHUTARIKI – EVIDENCE IN CHIEF

50. As was the case with the Applicant, Ms Mahutariki’s evidence in chief consisted almost entirely of her confirmation of Exhibit A2 which reads as follows:

To Whom It May Concern
My name is Mary-Anne Mahutariki and I am writing you this letter in regards to Darren Harrison. Darren and I have been involved in a relationship for the past year and are expecting our first child together on the 9th January 2009, which we are both very excited about.
The past year has been extremely challenging for me. I have attended several court appointments with Darren and been with him when he has had to report as part of his parole requirements, doing my best to show him support.
Although I do not believe his past actions to be of good character, I do believe that every body deserves the right to make a change. I believe that my influence in his life has made him want to try and be a better person and given him reason to change his ways.
Darren has a very kind hearted, loving nature. I believe his past behaviour is a result of a big lack in the support that he needed, having grown up in a very unstable family. At the time he committed the crimes that he was found guilty of he was very much influenced by various drugs and alcohol and associated with a bad crowd of people.
Darren attended the Kedesh Rehabilitation Centre from the 9th September 2008, with the intent to better himself and fulfil a part of his parole requirements. Prior to being taken in to immigration he seemed to be making great progress and I noticed a great change in him. It is extremely disappointing because not only did he have a week and 1 day to complete the program but he was also expected to commence work on the 10th November 2008 with Postal Logistics before he was taken into the Villawood Immigration Detention Centre.
I am a 31 year old Christian citizen and have resided in Australia since the age of 3, making that a total of 28 years. I have a 9 year old daughter from a past relationship that failed, forcing me to raise my daughter on my own. Having been raised here I believe that Australia is my home and has so much more of a future to offer than New Zealand. Moving to New Zealand will mean moving into unfamiliar territory and that frightens me because I do not know what to expect.
Darren and I were waiting for his parole period to end in January, as well as the arrival of our baby. We had plans to take our little family to Cairns where my parents have property, and make a new start in life. I know that he is extremely excited about becoming a father again and from what I have witnessed I believe that he is capable [illegible]
Darren and I just want the opportunity to live as a family and do the best that we possibly can for our children. I cannot imagine living life without the love and support of the one that I love. I already did that once with my daughter and although I didn’t do a bad job. I would hate for both of my children to have to grow up without a father.
I love and care for Darren Harrison and I ask only for the opportunity to prove that with my help, Darren will show that he is capable of becoming the responsible person that I know he is.
...

51. Ms Mahutariki said in amplification of Exhibit A2 that she has a bachelor degree in theology conferred on her by the Fiji College of Evangelism, a private college run by her father in Auburn. She has a daughter by a previous relationship and her recently born son, born 7 January 2009.

PART E - THE EVIDENCE OF MS MAHUTARIKI – CROSS EXAMINATION

52. Ms Mahutariki said that she met the Applicant in November 2007 and that they became a couple in January or February 2008 and that she became pregnant in April 2008.
53. Ms Mahutariki said that she went with the Applicant to parole reporting sessions. As she put it “I went with him to Penrith and to court cases in Parramatta about parole”. She said that she knew nothing about any breaches. His meetings with the parole authorities were confidential and she could not and did not take part in them. He did tell her though that he had received non-compliance warning letters. When asked whether the Applicant told her as to what non-compliance was involved she answered “not really”. She went on to say that “maybe he wasn’t fully clean” and when asked where she obtained this information she answered that she had obtained it from him, the Applicant.
54. Ms Mahutariki said that she was unhappy when in July 2008 she found out that the Applicant was not “clean”. When asked whether she enquired where he was getting the drugs her answer was “no I didn’t want to know”.
55. Ms Mahutariki was asked what she meant when she said that she was unhappy. She said that she told the Applicant that he had to choose between the drugs and her; this occurred at a time when she was pregnant with their son. She went on to say that in July 2008 when she found that he was using drugs the drugs in question consisted only of cannabis. She agreed that his use of cannabis was in breach of his parole conditions.
56. It was put to Ms Mahutariki that the Applicant had said that when he came out of gaol he started associating with his former associates. She said that she knew who they were, but she would not associate with them at all.
57. Ms Mahutariki said that she knew of the Applicant’s criminal record which, she said, arose because he was involved with a bad crowd. She agreed that she knew that the crimes were committed when he was on drugs. She agreed also that she was concerned, but said that the Applicant told her that he is not now on drugs and she had not seen him using them.
58. When asked whether it would have been possible for her to ascertain what was occurring in relation to the parole conditions she answered “I just didn’t. I was worried about my baby and finding out about things that I didn’t want to know about”.
59. Ms Mahutariki said also that she had talked to the Applicant about drugs and he gave her an answer that “drugs made the day go by and it was having fun”. As to the prospect of living in Cairns with the Applicant Ms Mahutariki agreed that her father has a house there which would be available for their use, but that her father would require that rent be paid.
60. Ms Mahutariki said that to go to New Zealand was not welcomed by her because New Zealand is unfamiliar, but that if necessary she and their son and her daughter would accompany the Applicant to New Zealand. When asked whether her parents would support her in New Zealand, she replied merely that they did not have property there.

PART F - ASSESSMENT OF THE EVIDENCE

61. Ms Mahutariki is some seven years older than the Applicant and her evidence was in my view acceptable and credible. At the same time it must be noted that her knowledge of relevant matters was in many respects limited. She appears to have adopted an attitude which enables her to ignore what she would prefer not to know.
62. The Applicant’s own evidence was in some respects not impressive. This is so in particular in relation to the victim offences and his answers to questions related to drugs. A consideration of Exhibit A1 would tend to indicate that the Applicant is articulate and educated and he insisted that he had written exhibit A1 himself and without help. I find this hard to believe having regard to the inarticulate nature of his evidence, which was often confined to monosyllabic and sometimes non-responsive answers. The style of Exhibit A1 and Exhibit A2 would suggest that in all probability they were written by the same person and being Ms Mahutariki. There is another aspect of the Applicant’s evidence which can usefully be considered in this context. He said that he wanted merely a second chance. An analysis of the sentencing remarks and the parole reports read as a whole indicates that he has had a number of chances. There were references to drugs on the basis and assumption that they would be given up and there were also assumptions, mistaken as events proved, as to courses which should have been taken. The parole reports indicate a consistent record of non-compliance while at the same time indicating a few positive aspects. Had the Applicant complied with his parole obligations the probabilities are that this application would not be before the Tribunal. It may be noted that the parole authorities did indeed report the matter to the immigration authorities and as to which see Attachment S dated 16 June 2008 which relevantly reads as follows:

The following information is a summary of Darren Harrison’s response to parole supervision.
The offender was been under the supervision of this Service since October 2008. He has reported to this Service as directed and has been the subject of random urines since his release to parole. On 26 November 2007 this Service submitted a breach report informing the State Parole Authority of Mr Harrison’s positive urine results for cannabis. Subsequently, the State Parole Authority issued a warning letter.
On 8 February 2008, the offender was directed to undertake urine analysis, which he did. Prior to this he again disclosed his ongoing use of cannabis. During interview he was also asked about his alcohol use. The offender stated that he had consumed alcohol over the Christmas and New Year period. Mr Harrison was directed to not consume any alcohol. On 20 February his urinalysis returned positive for cannabis and methyl amphetamine. The offender advised that he had been smoking methyl amphetamines and cannabis since his release. A breach report was submitted to the State Parole Authority on 7 March 2008.
Mr Harrison agreed to be referred to the Pacific Islander Program at the Mt Druitt District Office, and he also agreed to contact the Nepean Drug and Alcohol Service to be assessed for an appropriate treatment plan that will address his illicit drug use.
Contact with Nepean Drug and Alcohol services indicated that he attended the relapse prevention program on 7, 14, 21, and 28 November 2007, with no further contact. The offender was referred and attended for assessment and has been accepted into the next Pacific Islander’s Program.
Mr. Harrison has provided regular urine specimens on 7, 20, and 28 March 2008, and 14 April 2008. The results have shown consistent cannabis use, however, it was noted that the level of THC was reducing. Of concern is that on 14 April 2008, results also showed positive for methyl amphetamines. Mr. Harrison has stated that he smoked methyl amphetamines on the odd occasion and indicated that he did not think there was a problem. He appears to have a nonchalant attitude, stating that he is making some effort in order to stay clean but is having some difficulty. Entry into a rehabilitation unit has been discussed with Mr. Harrison; however he maintains that he is a casual drug user and that he will not be able to complete any residential program.
On 28 April 2008, the offender was directed to report on 6 May 2008, for the Induction session of the Islander Program held at the Mount Druitt District Office. This Service was informed that he failed to report at that time. Records show that he was contacted by telephone on 7 May 2008 at which time he agreed to attend the first group session on that same evening. He failed to attend as directed.
On 12 May he reported to this office, stating that due to his work he had been unable to attend the program but he could not provide any reason for not informing the officer or facilitator. Mr. Harrison stated he is working full time for a family member as a forklift driver. Enquiries have confirmed this information; however, the offender has failed to provide documentation of this as requested.
An appointment was made for Mr. Harrison to report to this office on 30 May 2008, specifically to provide a further urine sample. He failed to report and when contacted he said that he had to work and could not leave in time for the appointment. He reported 2 June 2008, and did provide a further urine sample, however the results are still pending.
Of some concern is that Mr Harrison has not addressed his offending behaviour in any significant manner. He presents as a well mannered man, however, he continues to ignore directions regarding his continued drug use. He has had numerous warnings both from this Service, and previously from the State Parole Authority without any seeming affect in his attitude. He complies with some degree; however his overall compliance is unsatisfactory.
...

The Applicant appears to be easily led and all too prone to succumb to the lure of drugs. The Tribunal has only his own statement that he has been off drugs and for a comparatively short while. Evidence to this effect in the form of test results would clearly have been highly desirable.

PART G - DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – NO. 21 (“DIRECTION 21”)

63. Part 2 of Direction 21 is relevant because the Applicant fails the character test in consequence of his criminal record. The Respondent’s Statement of Facts and Contentions deals with case law as to character; the Tribunal does not consider it necessary to refer to that case law because failure of the character test arises as a matter of law.
64. Clause 2.3 of Direction 21 provides that the primary considerations in respect to exercising the discretion are as follows:

PRIMARY CONSIDERATIONS

2.3 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.
  

65. Clause 2.3 of Direction 21 must be read in conjunction with clause 2.5 of Direction 21 which reads as follows:

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

66. It cannot be denied that some of the crimes and in particular the train offences and the victim offences committed by the Applicant fall within the very serious category set out in clause 2.6. Even apart from the crimes of violence of which he was convicted, he was on his own admission a dealer of drugs, and even though he was never convicted of the crime of dealing drugs. The extent of his dealing must have been substantial, given that it had to be enough over a considerable period to produce a profit of $1,000 per week.
67. As I have said, the evidence of the Applicant was in certain respects not credible. His conduct since he came to Australia has been almost invariably bad and indicative of a profound disregard for the law. He was guilty of offences while in gaol and it is moreover clear that he has treated his parole conditions with blatant disregard. He appears to be extremely fortunate that he was not obliged to serve the remainder of his gaol sentence. The Tribunal has only his unsupported word that he is now free of drugs. It is abundantly clear that he used drugs after leaving gaol.
68. In Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078, where the facts were in some respect at least similar to this case, I included a reference to Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942 clauses 51 to 53, as follows:
    51. Ms Teo referred the Tribunal to a decision by Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No 81. Clauses 3 to 6 (and clauses 4 and 5 are particularly relevant) of that decision read as follows:

...

(3) Deportation may have for the criminal consequences more serious than the term of imprisonment which he served. Thus, in Re Sergi, supra, the criminal, an aged man, if deported, would have been separated from his children and grandchildren and may have been separated from his wife. In Re Ceskovic (1979) 2 ALD 453, and in Re Sevis, supra, consideration was given to the possibility of further punishment of the criminal should he return to his homeland.

Deportation may interfere with the criminal's rehabilitation. One of the objects of a sentence of imprisonment is the criminal's rehabilitation into the community. In the following cases it was thought that deportation would be likely to prejudice the criminal's rehabilitation: Re Vincent (1978) 1 ALD 460, Re Sajatovic (1979) 2 ALN No 78, and Re Martin & Sergmann (1980) 2 ALN No 114.

(4) The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.

The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. The cases I have mentioned under factor (2) are here relevant.

(5) Although the science of recidivism is an imprecise one, the task of assessing the prospects of future harm to Australia should the criminal remain occupies much of the Tribunal's attention in deportation reviews. The Tribunal gives attention to statistics on recidivism to the extent that they are available and expects that persons appearing for the parties will have considered what are the most relevant statistics currently available.

In the past history of most of the criminals considered for deportation, that is to say, criminals who have committed relatively serious crimes, personality defects, emotional or intellectual immaturity, lack of control or like matters can be identified. It is for this reason that in some types of crimes, for example, the crime of break, enter and steal, the rate of recidivism is relatively high. Thus the Tribunal finds little assistance in simplistic evidence from an applicant that he will not offend again. The task of the Tribunal is to identify the factors which led to the commission of the crime, to judge the effect of the period of incarceration upon the criminal and to assess the risk of recidivism accordingly. Having made its assessment of the risk of recidivism in a particular case, the Tribunal may find it necessary to take into account the fact that the techniques of prediction are clumsy and that the assessment of probabilities may be wrong.
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. See Re Hood (1977), 1 ALN No 5, Re Tcherchian (1978), 1 ALN No 20, Re Botic (1978), 2 ALN No 3, Re Seljankovski (1979), 2 ALN No 43, Re Bio (1979), 2 ALN No 48, Re Smithers & Manson (1979), 2 ALN No 51, Re Nardella (1979), 2 ALN No 55. And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. See Re Becker [1977] AATA 12; (1977), 1 ALD 158, Re Gemayel (1978), 2 ALN No 5. (Emphasis added by the Tribunal)

(6) The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature. In many of the cases which come up for consideration, deterrence of others is not a significant factor. The crimes are of an individual character and any deterrence that is needed is satisfied by the provisions of the criminal law. But there are a number of cases in which crimes of a particular type have been associated with particular ethnic communities. Evidence before the Tribunal has shown that a number of young New Zealand citizens, particularly those living in and around the Bondi area of Sydney, have had a propensity to commit crimes in the nature of break, enter and steal, minor frauds and the like. Because a community group is involved, it has been thought to be useful that that group should appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by return to New Zealand. See Re Frith, supra, Re Winthrop & Smith (1980) 2 ALD 873, Re Tombuloglu (1981) 3 ALN No 11, and Re Steed (unreported, 17 July 1981, No N13/81).

Similarly, evidence before Tribunals has shown that some Italians from Calabria, particularly from the vicinity of the town of Plati, and some elements of the Turkish and Lebanese ethnic communities in Australia have become involved in drug offences. In some cases, it has been thought that the desirability of deterring others of the ethnic group from committing offences of a like nature was a relevant factor to which weight should be given.
Nevertheless, this is a factor which is taken into account only with care. As I said in Re Saverio Barbaro (1980) 3 ALD 1 at 15, 'The Minister contends that a deportation order is not imposed by way of punishment. One of the grounds in the notice of appeal in Gungor's case is that "The making of a deportation order is not punishment". But little purpose is served by characterizing deportation as being not a punishment without recognizing that, if the major factor which moves the making of the deportation order is the desire to deter persons other than the convicted person from committing crimes of a like nature, then the making of an order may serve as an additional punishment because it is a detriment imposed as a consequence of the offence and is imposed with a view to deterring other persons from committing like offences. When a deportation order is made principally for the purpose of deterrence, its affinity with punishment consequent upon a conviction becomes a close one. That is a relevant matter to be taken into account.
...

52. Ms Teo also referred the Tribunal to the judgment of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198. See in particular the following extract from the judgment at 203 from Beaumont J as follows:

...
Risk of recidivism
The tribunal said, in the course of its reasons: ``As to the possibility of recidivism, there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed ... I believe accordingly that the possibility of recidivism is quite minimal.''
It will be recalled that the minister expressed his conclusion on this aspect as follows: “I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP program. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low.”
There is an apparent inconsistency in this reasoning. On the one hand, there is “the reality” of a “real risk, however minimal ...” [my emphasis]. On the other hand, the minister's conclusion on the point is said not to “depart greatly” from the tribunal and the possibility is said to be “low”.
I have difficulty in following the logic of this approach. If a risk is “real”, it is not apparent that it can at the same time be “minimal” or even “low”. The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the tribunal on the point and, at the same time, express the opinion that there was a “real” risk. Such an opinion would be quite contrary to the tribunal's conclusion on this matter. It must follow, in my view that, to this extent, the minister's reasoning was “manifestly unreasonable”. This was an important aspect of the minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the minister for further consideration in accordance with the law.
...

53. It is of course clear that the judgment in Batey (supra) is binding on me. The decision in Stone (supra) while it may not be binding in the strict legal sense, was given by a judge and one of this Tribunal’s most respected presidents and deserves consideration accordingly.
69. I refer also to a recent decision of Deputy President Walker in Re Tirtabudi and Minister for Immigration and Citizenship [2008] AATA 1106; clause 127 of that decision reads as follows:

Indeed, the tribunal has taken the view that it may be an aggravating factor in s 501 visa cancellation cases: When the use of drugs leads to the commission of other crimes the like of those engaged in by the Applicant a situation arises where the community has the greater need to be protected (Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at para 34).

70. It seems to be clear enough that the Applicant is a victim of drugs and the sentencing remarks previously referred to recognised the role which drugs have played in the unlawful conduct of the Applicant. But in these circumstances, a finding that the Applicant does represent a threat to the Australian community and that there is a significant risk of recidivism is unavoidable. That this must be so results from a consideration of the evidence as a whole and in particular the Applicant’s blatant disregard of his parole conditions.
71. The difficulty as regards deterrence is that there is no firm evidence in the form of statistics and so that it is impossible to determine whether this decision might have any deterrent effect. It is however necessary to send a firm message to the effect that conduct of this kind cannot and will not be tolerated.
72. As stated in clause 2.12 of Direction 21, the Australian community expects non-citizens to obey Australian laws. The overall circumstances of this case are such that in my view the Australian public would expect that the Applicant’s visa be cancelled and that he be sent back to New Zealand.
73. The interests of the son of the Applicant and Ms Mahutariki are primary and the Tribunal accepts, as did the Respondent, that it would be best for him to stay with both his parents. If Ms Mahutariki had given evidence that she would not accompany the Applicant to New Zealand, I would have found that the other primary considerations overrode the interests of their son, but in this case the fact is that their son will be with both his parents but in New Zealand. This is so having regard to Ms Mahutariki’s unqualified statement that she would accompany the Applicant to New Zealand.
74. There was little evidence before the Tribunal as to the nature of the relationship between the Applicant and the daughter of Ms Mahutariki by her previous relationship and the duration of that relationship would not in the circumstances be long. I accept however that the interests of that daughter are also primary and the content of the preceding clause as to the son can apply equally to her; she too will be with both of them.
75. I have some residual concern as to the Applicant’s protestations as regards his son and in addition his own daughter. He referred to the birth of his son on the basis that it alone was of such importance that his reformation must be the result. His son was born only a very short while ago, and the Applicant’s record as a father has so far not been such as to inspire confidence. His statement that he wished to see his daughter as soon as he is released cannot be reconciled with the fact that he has largely ignored her existence for many years. There would no doubt have been hardship to Ms Mahutariki and her daughter, and of course their son, were it not for the fact that she has made it clear that she will go to New Zealand with him. It cannot be said that there would be hardship to the Applicant’s daughter by his prior relationship since that child has had no contact with her father for many years and has for some years not received any financial support from him. There is no evidence as to hardship to the Applicant’s grandparents or to any other persons not specifically referred to in these reasons.
76. The Applicant does not wish to go back to New Zealand. He said this was so because contact with his immediate family would be undesirable in view of their drug and gang habits. It is difficult to see why this is so. In Australia the Applicant’s criminal record must inevitably hamper his prospects of obtaining employment and indeed he said in evidence that prospective employers, when told of his record invariably reply that they will get back to him but never do so. This evidence in turn is hard to reconcile with his statement that he has procured an employment opportunity with Postal Logistics (see clause 20 above), a statement also made by Ms Mahutariki in exhibit A2. It is conceivable that this particular problem will be less acute in New Zealand. If the Applicant wishes to avoid his own immediate family in New Zealand the solution is simple in that he could settle in a city where they do not live and perhaps, if he considers desirable to do so, in whichever island of the two is the one in which they do not live. New Zealand is in many respects similar to Australia as to life styles and in particular as to its provision of health facilities and social security. It may be that, as the Applicant sought to indicate, wages are lower in New Zealand, but it must be remembered that as set out earlier (leaving aside his two month period of work for an aunt for ‘under the counter’ cash) and as he himself indicated, his employment prospects in Australia are poor. A move to New Zealand would on a prima facie basis appear to be a good solution and the Applicant’s objections as to the proximity of his immediate family do not on analysis appear to offer any valid reason to the contrary. If Ms Mahutariki’s parents are prepared to provide a degree of support in Cairns then presumably they will be prepared to do so also in New Zealand. There was no evidence of what that support might comprise or the extent of that support. It will be remembered that Ms Mahutariki said that she and the Applicant would be allowed to live in her father’s home in Cairns, but would be obliged to pay rent.
77. In all circumstances this is not a matter in respect of which the discretion can be exercised in favour of the Applicant and accordingly the decision under review must be affirmed.
    

I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President.

Signed: ................[sgd]................................................................

Associate

Date of Hearing 13 January 2009

Date of Decision 22 January 2009

Applicant self-represented

Solicitor for the Respondent Mr L Leerdam, DLA

Phillips Fox