English and Minister for Immigration and Citizenship [2010] AATA 2 (5 January 2010)

Last Updated: 5 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5037

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PETER ENGLISH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 5 January 2010

Place Brisbane (heard in Townsville)

Decision

The Tribunal affirms the decision under review.

.............Signed.................
Deputy President

CATCHWORDS

IMMIGRATION – cancellation of visa – protection of the Australian community – applicant a repeat criminal offender – crimes involving violence – age on arrival – seventeen years old – length of residence – only resident in Australia three years before engaging in serious criminal activity – applicant would experience significant difficulties if he returned to Papua New Guinea – his removal would impose hardship on his parents in particular – applicant was given prior warning of cancellation of visa – affirm decision under review.

Migration Act 1958 ss 499, 501

Direction [no. 41] – Visa refusal and cancellation under s 501 cls 5.2, 10(1), 10.1.1, 10.3, 11

REASONS FOR DECISION

5 January 2010	Deputy President P E Hack SC
INTRODUCTION

1. The applicant, Mr Peter English, is a long-term resident of Australia although he has never become a citizen of this country. On 9 October 2009 a delegate of the respondent, the Minister for Immigration and Citizenship, determined to cancel Mr English’s visa. Mr English seeks a review of that decision.

BACKGROUND

2. Mr English was born in Papua New Guinea in March 1976 and is a citizen of that country by birth. In November 1993, when Mr English was about five months short of his eighteenth birthday, his family migrated to Australia. Mr English held a Class BF Transitional Permanent visa until the decision which is the subject matter of this application. He attended school in Townsville during 1993 and part of 1994. He left school prior to the completion of his Grade 12 year and worked in a local meatworks. Thereafter Mr English commenced an apprenticeship as a chef in Sydney. He eventually completed three years of that apprenticeship.
3. Mr English came before the criminal courts at an early stage of his residence in Australia. Between June 1994 and December 1999 he committed minor criminal and traffic offences. In June 2000 he pleaded guilty in the District Court at Townsville to the offence of stealing with actual violence whilst in company, an offence committed in July 1996. Few of the background facts emerge from the sentencing remarks of Judge Wall QC however it appears from later proceedings that the offence involved attacking and robbing a pizza delivery driver. It would appear that Mr English’s co-offender was the more violent participant in the robbery. Mr English was sentenced to imprisonment for three years however that sentence was wholly suspended for a period of three years.
4. Mr English continued to offend and was convicted of minor drug and dishonesty offences in December 2000 and January 2001. As a consequence of this re-offending he appeared before Judge O’Brien in the District Court at Townsville on 20 March 2001 for breaching the suspended sentence. He was ordered to serve three months of the suspended sentence which was made cumulative upon a sentence of three months’ imprisonment earlier imposed in the Magistrates’ Court for failing to answer his undertaking as to bail.
5. There were further convictions for “street” offences in September 2001 and December 2001. In April 2002 Mr English was convicted of four offences of breaching a domestic violence order (in July 2001, October 2001 and April 2002) and sentenced to six months imprisonment. At the same time he was sentenced to lesser terms of imprisonment, to be served concurrently with the six months, for breaches of the Bail Act (Qld).
6. The consequence of this re-offending was that Mr English appeared before Judge McGill SC in the District Court at Gympie on 6 June 2002 where he was ordered to serve a further four months of the suspended sentence, to be served concurrently with the sentences imposed in April 2002.
7. This pattern of conduct prompted the Department of Immigration and Multicultural and Indigenous Affairs to consider visa cancellation. In July 2002 Mr English was given notice that that option was being considered and given an opportunity to provide information to be taken into account when the matter was being considered. The visa was not cancelled however I note that, as part of his response, Mr English asserted in a letter dated 18 December 2002:

”I am confident that I shall lead a stable secure lifestyle where crime will play no part. I have too many goals I wish to achieve and I do not want to come back to prison at all.”

8. Regrettably, Mr English’s confidence was ill-founded. In April and May 2003 he appears to have undertaken a personal crime spree. In the space of about six weeks Mr English committed the offences of receiving, unlawful use of a motor vehicle (four offences), dangerous operation of a motor vehicle (two offences), entering a dwelling house and committing an indictable offence (five completed offences and one attempt) and stealing. It appears that Mr English was shot in the course of one of these offences and was hospitalised for some days. No doubt as a consequence of his appalling bail history Mr English was remanded in custody before being sentenced by Judge Howell in December 2004. His Honour activated the balance of the suspended sentence, by then a period of 29 months, and imposed further sentences of four years’ imprisonment, suspended after 509 days i.e. the period of pre-sentence custody. The effect of his Honour’s orders was that Mr English was obliged to serve the balance of the suspended sentence and would then be released but subject to a further suspended sentence of 32 months imprisonment.
9. This spate of offences prompted further consideration being given to the cancellation of Mr English’s visa. In his letter of 22 July 2006 Mr English again assured the Department “that my criminal ways are behind me”. A decision favourable to Mr English was made in October 2006 at which point Mr English acknowledged in writing that he understood that:
   • A decision had been made not to cancel his visa under s.501(2) of the Migration Act 1958;
   • Any further conviction would result in the question of visa cancellation being reconsidered by the Minister or his or her delegate;
   • Disregard of the warning would weigh heavily against him if visa cancellation were to be reconsidered.
10. Mr English was released from prison in December 2006. He commenced a relationship with a woman however the relationship soured after some months. On 26 August 2007 Mr English entered the woman’s home and punched her in the eye with a closed fist. He armed himself with a pick handle and vandalised a door. He spat in her face. He then attempted to strike her in the head with the pick handle but she was fortunate enough to be able to protect her head with her arm. The blow to her arm was of sufficient force to fracture her right ulna. A few days later Mr English again entered the woman’s home. She hid under a bed because she was frightened of him. He did not leave when asked to do so but dragged her out from under the bed by the hair and assaulted her by punching her left thigh on about six occasions. He again spat in the complainant’s face and threatened to kill her. On each of these occasions Mr English verbally abused the complainant in vile terms.
11. Mr English was arrested on 17 September 2007 and has been in custody ever since. He was sentenced by Judge Howell on 13 June 2008 having pleaded guilty to one count of assault occasioning bodily whilst armed, one count of simple assault and one of wilful damage. The earlier suspended sentence was activated and he was sentenced to a further period of 33 months’ imprisonment with a parole eligibility date of 6 December 2009.
12. There is some information available about Mr English’s conduct in prison. Included in the documents is a report dated 20 November 2008 for the Department of Immigration and Citizenship undertaken by a from a Corrective Services psychologist. It indicates that Mr English was “waitlisted” for certain rehabilitation programmes but that he had withdrawn “due to lack of interest” from two other programmes designed to acquire computer skills. More troubling are the comments regarding his conduct. He is described as causing “minor disruption within the workplace” and responding “in a dismissive and arrogant manner” when spoken to by custodial staff about these disruptions. The report indicates that whilst Mr English was “polite and cooperative” on other occasions he had been “belligerent in his interactions with custodial officers”. It was not suggested that Mr English had any health issues.
13. By letter dated 24 November 2008 Mr English was informed that consideration was again being given to cancellation of his visa. Solicitors acting for Mr English prepared and submitted a detailed submission on his behalf which was lodged in July 2009. The decision to cancel his visa was made on 9 October 2009.

THE LEGISLATION

14. By virtue of s 501(2) of the Migration Act 1958 (Cth) the Minister may cancel a visa if the Minister reasonably suspects that the person “does not pass the character test” and the person does not satisfy the Minister that the person passes the character test. A person does not pass the character test if, relevantly, the person “has a substantial criminal record”[1]. The person has a substantial criminal record if, amongst other things, the person has been sentenced to a term of imprisonment of 1 month or more.
15. In the case of Mr English the delegate was plainly correct to hold the requisite suspicion and the submission lodged on his behalf in July 2009 accepted that Mr English did not pass the character test. That being so, the discretion to cancel was enlivened.
16. Section 499 of the Act permits the Minister to give written directions about the performance of functions or the exercise of powers under the Act. The Minister has given such directions to decision-makers performing functions or exercising powers under s 501 of the Act to cancel the visa of a person who is not able to satisfy the Minister that the person passes the character test. Direction [41], promulgated on 3 June 2009, is binding on all decision-makers, including the Tribunal on a review of an antecedent decision.
17. Under the heading “General Guidance” Direction [41] draws attention to the need to consider:

“(a) the nature of any harm that the person concerned may cause to the Australian community; and

(b) the risk of that harm occurring.”

It then goes on to provide:

“(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.

(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”

18. It is unnecessary in the present case to consider Part A of Direction [41] which is concerned with the application of the character test. Part B, which deals with the exercise of the discretion, is described in the following terms in the introductory part of the Direction:

“[Part B] provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. Decision-makers should note that a number of the primary and other considerations may not be relevant to a decision under certain circumstances. In the case of a visa applicant who is outside Australia (offshore), the primary consideration relating to length of residence in Australia may not be relevant.”

19. There are four primary considerations which must be taken into account. They are:

“(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

PROTECTION OF THE AUSTRALIAN COMMUNITY

20. It is necessary, at the outset, to acknowledge the stated objective of the Government, set out in clause 5.1(2) of Direction [41], which is to “protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”. Direction [41], in clause 10.1.1(1) notes that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community and that violent crimes, especially against vulnerable persons, are especially abhorrent to the whole community. The term “vulnerable persons” is not defined however “minors, the elderly and the disabled” are given as examples.
21. Mr English has committed numerous violent crimes, starting in July 1996 when he and another man robbed a pizza delivery man, and stretching to his appalling and violent conduct towards a much older woman in August 2007. In between he breached a domestic violence order on four occasions although I know nothing of the circumstances of those offences beyond the fact that they warranted a sentence of six months imprisonment. So far as the first of these offences is concerned, it appears that the co-offender was regarded as more culpable than Mr English. However it is, I think, right to consider a fast food delivery person to be vulnerable when lured, and robbed, by two offenders. As Judge Wall QC noted, people in that position are entitled to be protected from such conduct.
22. The offences in August 2007, as recounted in the sentencing remarks of Judge Howell, were truly horrifying. The persistent and sustained physical and verbal abuse towards the older female complainant was callous and cruel. Whilst the ingestion of proscribed drugs and alcohol may explain the conduct it does not excuse it. If anything, the pattern of resort to drugs of addiction compounds the seriousness of the violence. The sentencing remarks, and the sentence imposed, demonstrate that Mr English’s conduct on this occasion involved a high level of personal violence against a person who I would regard as being vulnerable. That vulnerability is highlighted by the fact of the complainant hiding under the bed in fear on the occasion of Mr English’s second set of offences.
23. But beyond these matters of violence are the very great numbers of other offences – offences of dishonesty, drug offences, traffic offences and street offences – that have been committed during the entire period of Mr English’s adult life in Australia. It appears from his criminal record that the only significant periods when he has not offended are those times when he was in gaol.
24. It is this pattern of persistent offending that concerns me when considering the risk of repetition of criminal conduct by Mr English. Time and time again Mr English has been given opportunities to reform his behaviour. He was given the benefit of a fully suspended sentence in June 2000 but had re-offended within months. Various orders in Magistrates’ Courts offered him the benefit of community based sentences. In June 2002 only part of the suspended sentence was required to be served because Judge McGill SC considered that there was some prospect of rehabilitation. Mr English was made aware in July 2002 of the real potential for cancellation of his visa. Despite these matters he re-offended within a few months of his release from prison.
25. He went back to prison, seemingly on 1 August 2003. His conduct on that occasion led to the balance of the suspended sentence being activated and further imprisonment being imposed. Again Mr English had the benefit of a favourable exercise of the discretion to cancel his visa and acknowledged in writing that further offending would weigh heavily against him if the matter had to be reconsidered. Despite all of this he again offended, this time very violently, within months of his release. Mr English’s criminal record shows numerous instances where he breached his bail or bail conditions.
26. As against these matters Mr English says that this time things will be different and that I ought conclude that if given a further opportunity he will not re-offend. Now, he says, he has had the benefit of undertaking courses which have given him an insight into his conduct and its effect on others around him, that he had not previously gained. In contrast to the earlier occasions when he was released from prison he has now learned strategies to cope with the negative attitudes that led to his earlier offending. He has, he says, learned to deal with events in his early childhood that he considered affected his behaviour.
27. I had the benefit of hearing evidence from Mr English’s mother, Mrs Mary English, and his father, Mr Abel English, and of affidavits from his siblings. The family members impressed me enormously as genuine people who have a deep affection and concern for Mr English. Mr Abel English sincerely believes that his son has “grown up” of recent times. I am sure that Mr Abel English and Mrs English and the rest of the family would offer Mr English all the support they can give were he permitted to remain in Australia. They are all genuinely hopeful that Mr English could reform his life if given a further opportunity to do so.
28. It does appear that Mr English has undertaken “self-help” and vocational courses that might assist him in rehabilitation. And he has the benefit of a report from a psychologist that suggest that he might now be regarded as being more motivated and with better coping mechanisms that earlier. I do not doubt the sincerity of the beliefs of the family members and of Mr English himself in his capacity for successful rehabilitation. But the history of the matter does not permit me the same degree of confidence in the prospects of Mr English being able to put his offending conduct behind him. On earlier occasions Mr English was confident that he would not re-offend, yet he did. On numerous occasions he was given the opportunity to mend his ways but he did not. Regrettably, I am driven to conclude that there would be a real risk of re-offending if Mr English were to be released.
29. Thus the first of the primary considerations seems to me to tell heavily against Mr English.

AGE ON ARRIVAL

30. The second primary consideration is whether the person was a minor on the commencement of residence in Australia. That is true of Mr English however the Direction requires that less weight be given if the person was close to attaining adulthood when the person began living in Australia. The example given to this clause precisely fits the circumstances of Mr English who was aged between 17 and 18 years on arrival.

THE LENGTH OF RESIDENCE

31. Clause 10.3(1) of Direction [41] is in these terms:

“Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.”

32. Broadly speaking, Mr English spent the first half of his life in Papua New Guinea and the second half of it in Australia. But Direction [41] does not express the matter in that way. It requires consideration to be given to the length of the period of residence prior to engaging in criminal activity. Thus while it is the fact that Mr English will have developed significant ties to the Australian community (albeit that some of them will be ties with undesirable elements) this consideration does not favour Mr English greatly given that he engaged in a serious criminal offence in July 1996, less than three years after his arrival in Australia.

INTERNATIONAL OBLIGATIONS

33. Mr English does not have any children but I accept that he regards the children of his siblings as his own. Because Mr English was not represented by a lawyer and the matter was not argued before me I am far from convinced that Direction [41] would require me to have regard to the best interests of these children. However even if I were to assume that I was obliged to do so I would not regard the best interests of Mr English’s nieces and nephews as requiring his presence in Australia. That is so, in my view, because those children have parents who appear to be raising them very well and Mr English’s repeated incarcerations would, no doubt, have significantly interfered with the extent to which he has been able to interact normally with them in the past.
34. There appear to be no other international obligations of Australia that require consideration.

OTHER CONSIDERATIONS

35. Clause 11 of Direction [41] lists, non-exhaustively, other matters that might be relevant and require consideration although Clause 11(2) says of other relevant considerations that generally “they should be given less weight that that given to primary considerations”. The features of the present case that seem to me to have particular relevance are these:

(a) the difficulties that Mr English would experience were he to be returned to Papua New Guinea;

(b) the emotional upset that Mr English’s removal would cause to his family, in particular, his mother and father; and,

(c) the fact of Mr English’s two prior warnings of the potential of visa cancellation.

The difficulties for Mr English

36. Mr English would be returning to a country with which he has had no contact in recent times. He has not spent any part of his adult life in Papua New Guinea. The material on conditions in Papua New Guinea obtained from the Department of Foreign Affairs and Trade confirms that there are “high levels of serious crime” in Papua New Guinea.
37. Whilst Mr English has some relatives still living in Papua New Guinea they are predominantly on his father’s side of the family with whom he had little contact when he was young. Moreover there are serious allegations that Mr English was abused, as a child, by a member of that family. It is therefore not to be expected that he would seek, or find, support or assistance there. He has a maternal aunt but she already has considerable family responsibilities.
38. Unemployment in Papua New Guinea is high although Mr English is not entirely without skills. He has an interest in timber polishing and has training as a chef.
39. It must be accepted that removal to Papua New Guinea would cause considerable hardship to Mr English.

Difficulties for other family members

40. As I have observed I was very impressed by the members of Mr English’s family who gave evidence. It is impossible not to have sympathy for his parents who struck me as very genuine and loving parents. As Mr Abel English put the matter, whatever his son had done, he remained his son. Mrs English’s attitude was the same. They both love their son, despite his many demonstrated faults. Mr English’s removal will impose enormous hardship on his parents in particular, and on the other members of his family. It is of limited comfort that they could visit Mr English in Papua New Guinea.

Prior warnings

41. It is the fact that Mr English has twice been warned of the potential consequences of continued offending. He has chosen to ignore those warnings.

Other matters

42. It is relevant to consider what appears to be the underlying cause of Mr English’s behaviour which was the abuse of him during his childhood by a male relative. Mr English attributes his drug taking and alcohol abuse to his inability to cope or deal with his memories of the abuse. It seems evident enough that drug and alcohol abuse led inevitably to his offending behaviour. Mr English says that, having undertaken the “Making Choices” programme he is now much better equipped to deal with the events of the past and a greater capacity to deal with the future.

CONSIDERATION

43. The primary consideration of most importance in the present case is the protection of the Australian community. On the material before me I conclude that there would be a real risk of re-offending if Mr English were to be released. Whilst Mr English was a minor when he arrived in Australia he was just short of his majority. He has spent his adult life in Australia but commenced offending within a short time after his arrival in the country. He has been warned of the risk of visa cancellation on two prior occasions and has not heeded those warnings.
44. All of these matters suggest strongly that the discretion to cancel ought to be exercised.
45. In Mr English’s favour is the hardship and difficulty that return to Papua New Guinea would cause him. Perhaps even more in his favour is the hardship that his family, particularly his parents, will suffer were his visa to be cancelled.
46. Despite the great sympathy that I have for Mr English’s parents I am driven to the conclusion that the decision to cancel Mr English’s visa was the preferable one. I would then affirm the decision under review.
    

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .............Signed.....................................................

Associate

Date of Hearing 10 December 2009

Date of Decision 5 January 2010

Applicant Unrepresented

Solicitors for the respondent Clayton Utz

---

[1] See s 501(6) and s 501(7), Migration Act 1958