Gallagher and Minister for Immigration and Citizenship [2011] AATA 109 (18 February 2011)

Last Updated: 18 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 109

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5300

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID GALLAGHER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

The Hon R J Groom AO (Deputy President)

Date 18 February 2011

Place Hobart

Decision

The decision under review is affirmed.

[Sgd Hon R J Groom]
Deputy President

CATCHWORDS

VISA CANCELLATION - character test - Direction 41 - substantial criminal record - protection of Australian community - seriousness and nature of conduct - risk that conduct may be repeated - whether a minor when began living in Australia - length of time in Australia - international obligations - other considerations - decision under review affirmed

Migration Act 1958 (Commonwealth), ss 499, 501(2), (6)(a), (7)(c)

Direction [No 41] - Visa Refusal and Cancellation under Section 501

Re Stone and Minister of Immigration and Ethnic Affairs [1981] AATA 91(24 August 1981)

Minister for Immigration and Citizenship v Obele [2010] FCA 1445 (22 December 2010)

REASONS FOR DECISION

18 February 2011

The Hon R J Groom AO (Deputy President)

INTRODUCTION

1. This is an application to review a decision by a delegate of the respondent to cancel the applicant's Class TY, Subclass 444, Special Category (Temporary) Visa.
2. The cancellation was made under section 501(2) of the Migration Act 1958 ("the Act") on the ground that the applicant did not pass the character test within the meaning of section 501 of the Act.

BACKGROUND

3. The applicant was born in New Zealand on 31 December 1985. He remains a citizen of New Zealand.
4. He first came to Australia on 15 February 2006 on a temporary visa with the stated intention of residing permanently in this country. The applicant was 20 years of age when he first entered Australia.
5. The applicant has been convicted of several offences in Australia and New Zealand. The offences were driving and related offences. Alcohol was a significant factor in most of those offences. He was convicted in the Supreme Court of Tasmania of the crime of "causing death by dangerous driving". On the 18 June 2008 he was sentenced to a term of imprisonment of four years for that crime. The sentencing Judge fixed a non-parole period of two years and eight months. The applicant remains an inmate of the Risdon Prison in Tasmania.
6. Details of the applicant's convictions are as follows:

Date of Offence	Country	Offence	Final Court Date
29.12.03	NZ	Operate a vehicle carelessly	05.02.04
29.12.03	NZ	Fail to stop or ascertain injury-non-injury crash	05.02.04
01.12.06	Aus	Exceed 0.05 (rdg 0.133)	25.05.07
15.01.07	Aus	Fail to appear	25.05.07
11.03.07	Aus	Exceed 0.05 (rdg 0.132)	16.04.07
11.03.07	Aus	Possess controlled plant or its products	16.04.07
11.03.07	Aus	Use unregistered motor vehicle	16.04.07
11.03.07	Aus	Use motor vehicle with no premium cover	16.04.07
18.03.07	Aus	Fail to comply with duties of driver involved in a crash	15.09.08
29.03.07	Aus	Cause death by dangerous driving	18.06.08
06.04.07	Aus	Exceed 0.05 (rdg 0.132)	16.05.07
26.04.07	Aus	Exceed speed limit (15-22 kph)	Infringement notice
26.04.07	Aus	Use unregistered motor vehicle	Infringement notice
28.04.07	Aus	Exceed speed limit (10-14 kph)	Infringement notice
28.04.07	Aus	Use unregistered motor vehicle	Infringement notice
15.12.07	NZ	Exceed breath alcohol of 400 mgms/l (rdg 1162)	20.12.07

SECTION 501 AND DIRECTION 41

7. Pursuant to s501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record within the meaning of s501(7) of the Act.
8. Under s501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.
9. The evidence establishes that the applicant has a substantial criminal record and therefore does not pass the character test.
10. Even if the applicant does not pass the character test, the Tribunal has the power to exercise the discretion provided in s501 of the Act in favour of the applicant. Ministerial Direction (No 41) – “Visa Refusal and Cancellation Under s501" made pursuant to s499 of the Act guides the Tribunal in the exercise of that discretion.
11. The duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations set out in Direction 41 in order to decide how to exercise the discretion.
12. Direction 41 includes a number of "primary" and "other" considerations to which the decision-maker must have regard.
13. The primary considerations in Direction 41 are as follows:

"10. The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(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)".

14. "Other" considerations set out in Direction 41 are dealt with under relevant headings appearing later in these reasons.
15. The protection of the Australian community is a principal objective of Direction 41. In paragraph 5.1 the objectives of Direction 41 are explained and include the following:

"(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens".

The crime of causing death by dangerous driving is a "... form of unlawful killing" and is therefore considered serious in Direction 41.

PROTECTION OF THE AUSTRALIAN COMMUNITY

SERIOUSNESS AND NATURE OF THE RELEVANT CONDUCT

16. The applicant's dangerous driving on the 29 March 2007 resulted in the death of an innocent motor cyclist. The applicant and his co-accused Hayden Anderson were involved in a 50 kilometre car race from Glenorchy to Franklin in Tasmania. The safety of many citizens was endangered during that episode of dangerous driving.
17. It is noted that paragraph 10.1.1(2) of Direction 41 states:

"(2) The following are examples of offences and conduct that are considered serious:
(a) murder, manslaughter, or any other form of unlawful killing;"

18. Slicer J, when imposing the four year prison sentence, said:

"Motorists saw each or both of the vehicles engaged in acts of dangerous driving at Glenorchy, the Southern Outlet, Kingston (Anderson's alone), Lower Longley, Grove, Huonville, and the highway between Huonville and Franklin. Those acts included travelling at speeds of up to 140kph, passing and re-passing, travelling close together, crossing double lines, speeding through a town area, and cutting into the path of oncoming traffic. Gestures were made by one of the passengers consistent with the taunting of the following driver. A number of other drivers were forced to take evasive action to avoid collision. The course of driving occurred during a 50 kilometre journey. That course was repetitive, prolonged, and posed dangers to other users at varying sections of the road. The section of the highway between Huonville and Franklin is narrow and windy, with few places suitable for overtaking.
...
The collision occurred when Anderson lost control of his vehicle at high speed. It travelled onto the verge, travelled out of control onto its incorrect side, slid sideways for a considerable distance and struck the oncoming motor cyclist, killing him instantly. The impact was horrendous. The speed of Anderson's vehicle at the time of the loss of control was in excess of 140kph. Gallagher, driving the then preceding vehicle, that had just passed the motor cyclist, turned around and returned to the scene, but in a panic or fear of implication, did not stop and returned to Hobart. Each driver was responsible for the death".

19. The applicant's conduct not only involved dangerous driving with no preper regard shown for the safety of other road users but he also failed to attend and remain at the scene of the accident. The evidence establishes that this was not the first time the applicant had failed to stop at the scene of an accident. The applicant had a prior conviction for a similar offence in New Zealand in 2003.
20. The applicant has had a number of convictions for drink driving offences both before and after the fatal accident on 29 March 2007. His first breathalyser offence occurred on 1 December 2006. This was less than ten months after arriving in Australia. The applicant was involved in another drink driving offence on the 11 March 2007. That offence was 18 days before he committed the crime of dangerous driving. On the 6 April 2007, only days after the fatal accident, he was again apprehended driving with an excessive blood alcohol reading. This conduct displayed a total disregard for Australian road safety laws and the safety of the Australian community.

RISK THAT THE CONDUCT MAY BE REPEATED

21. Paragraph 10.1.2 of Direction 41 provides as follows:

"(1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre- sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts".

22. The then President of the Tribunal Davies J said in Re Stone and Minister of Immigration and Ethnic Affairs [1981] AATA 91 (24 August 1981);

"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".

23. The applicant has placed the Australian community at risk particularly when he has consumed alcohol and then driven a motor vehicle. He has already been involved in three motor vehicle accidents including the fatal accident at Franklin.
24. The applicant became involved in drink driving and other offences soon after he arrived in Australia in 2006. His last breathalyser offence was committed in New Zealand on 15 December 2007. That last offence less than nine months after the fatal accident was only five months or so before he was convicted of the crime of causing death by dangerous driving. He was taken into custody upon conviction on 28 May 2008 and was sentenced on 18 June 2008 with the sentence being backdated to the date he entered into custody. There has therefore been no further risk of offences since 28 May 2008 because he has been an inmate of the Risdon Prison from that date.
25. The excessive use of alcohol has been a significant factor in the applicant's offences and accidents. Abstaining from drinking alcohol, or at least controlling his drinking habit, is perhaps the greatest challenge he faces. It is likely to be the key to his future success. If he does manage to overcome his past practice of driving after consuming a significant quantity of alcohol then he has the potential to lead a decent law abiding and successful life. The evidence is that the applicant is not a violent person. He has no offences for acts of violence or convictions for offences of dishonesty. The Tribunal notes that he has undertaken "Getting Smart", an alcohol and drug rehabilitation program, whilst in prison. He attended all sessions in the 30 hour program and apparently displayed a desire to create a positive future for himself and to abstain from the excessive use of alcohol. The report from the facilitators of the program suggests the applicant now has a realisation that he has a problem with alcohol and a strategy to limit his drinking. He said in oral evidence:

"I now recognise that I have a drink driving problem".

His conduct in the prison, with some relatively minor exceptions, has been very good. The applicant stressed in oral evidence that he has changed his ways and was determined to overcome his drinking problems and make a positive contribution to the community.

26. After considering the written material and the oral evidence before it the Tribunal remains concerned that when the applicant is released from prison he may again commit offences and endanger the safety of others. It notes that in the past he has committed further offences after prior court cases and penalties. On one occasion only days after driving dangerously and causing a fatal accident he was again apprehended driving with a blood alcohol reading of 0.132. To this point in time serious penalties have not deterred him. Perhaps his term in prison will act as a genuine deterrent but only time will tell. He said in evidence:

"I have definitely learnt from this experience".

The Tribunal concludes however from the material before it that there continues to be a real risk that the applicant may in the future drive again after consuming alcohol and so endanger other road users.

WHETHER A MINOR WHEN THE APPLCANT BEGAN LIVING IN AUSTRALIA

27. The applicant entered Australia as an adult person aged 20 years. His formative years were spent in New Zealand. This is therefore not a relevant consideration in this case.

LENGTH OF TIME RESIDENT IN AUSTRALIA

28. As has been mentioned the applicant's first offence in Australia was committed less than ten months after arriving in this country. Following his absence from Australia for a short period he then committed a further offence just ten days after he re-entered Australia. Since his first arrival in Australia in 2006 the calendar year 2008 was the only year he did not commit an offence. In that year, however, he was placed in custody from 28 May 2008. He has remained in prison since that date. The applicant has only lived in Australia since February 2006. He has therefore been here for a total period of approximately five years but has been in prison for more than half that period. There is no persuasive evidence suggesting he has developed significant ties to the Australian community.

INTERNATIONAL OBLIGATIONS

29. The only international obligation deserving consideration is the International Convention on the Rights of the Child. That Convention applies broadly to children. Mr Gallagher has no children of his own but he says he has developed a warm and caring relationship with Ms Wakefield's son now aged almost two years. However the child was born after Mr Gallagher entered prison and so the relationship has only developed during visits to prison. The Tribunal is of the view that this brief and limited relationship does not give rise to any obligation under the Convention. The Tribunal finds that there are no children whose best interests may be adversely affected by the cancellation of Mr Gallagher's visa.

OTHER CONSIDERATIONS

30. Paragraph 11(2) of Direction 41 provides:

"(2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations".

FAMILY TIES, RELATIONSHIPS

31. It is necessary for the Tribunal to consider any genuine marital (including de facto) relationship with an Australian citizen. It is indicated the following should be considered:

"... to be considered are the nature and duration of the relationship; the degree to which the partner is financially, physically or psychologically dependent on the non-citizen; (if applicable) the impact of separation resulting from the person's removal from Australia; and whether, at the time of entering into or establishing the relationship, the partner knew that the person was of character concern".

32. The applicant told the Tribunal that when he is released from prison on parole he will live with his partner Nicole Wakefield and her two children of previous relationships. Although Mr Gallagher and Ms Wakefield have been friends for some years they were not in a de facto relationship before the applicant was imprisoned. They have never lived together. The Tribunal recognises that although the relationship is of an unusual and limited kind the two are very fond of each other and have formed a caring relationship. However the relationship has not yet been tested beyond the confines of prison visits. Just how successful it would be if they commenced living together is obviously difficult to predict. Ms Wakefield seems to be a good mother and a responsible hard working person. However she has acknowledged that she has had two other relationships including having a child with another man who is also in prison for a serious offence. She has a daughter from an earlier relationship. Mr Gallagher has also had other relationships including with a young woman who he had claimed to be his partner in a "Personal Details Form" dated 20 January 2009 and completed during his term of imprisonment on the 20 January 2009.

Ms Wakefield read out a statement in oral evidence which included the following:

"His time in Jail (in my opinion) has done him the world of good and made him realise there's more to life than how he was living it up until the accident. In my opinion I know I have been and still am an extremely good influence on him in the time we have been in a romantic relationship and know I can help him adjust to the Community and be a good influence to my children".

Although these are difficult matters to predict with any degree of certainty the Tribunal remains most concerned, despite the stated beliefs of Ms Wakefield and Mr Gallagher, that their relationship may not necessarily endure. Realistically it is a factor which can be accorded only limited weight.
.

THE APPLICANT'S AGE

33. This is not a relevant factor in this application. The applicant is now 25 years of age. There are no care or support issues deserving consideration.

HEALTH

34. The applicant appears to be a very strong and healthy person. There is no evidence that the applicant is suffering any ill-health or any health conditions requiring special consideration.

LINKS TO NEW ZEALAND

35. The applicant's parents and two brothers live in New Zealand. He said in oral evidence:

"I came from a good family and taught good values".

His mother is unwell and he is concerned about her. He says he has good relations with his two brothers. The applicant informed the Tribunal that his father and two brothers have not been in trouble with the law. He telephones his family in New Zealand on a regular basis. It would appear that the applicant has a good relationship with members of his family. The evidence indicates that his family have been concerned about him and the Tribunal considers it is likely that they would be supportive of him. He did express concern that there was a culture of drinking within his family in New Zealand. However the evidence establishes that the move to Australia did not assist the applicant and did not remove him from regular involvement with alcohol. In Australia he continued to drink alcohol to excess and to be involved in alcohol related offences.

HARDSHIP TO THE APPLICANT OR IMMEDIATE FAMILY MEMBERS

36. The applicant's de facto partner, Nicole Wakefield, has said that she would not travel to New Zealand to live with Mr Gallagher if his visa was cancelled.
    This is because the father of her daughter would strongly oppose the daughter leaving Tasmania. Ms Wakefield told the Tribunal that she would not be willing to live separately from her daughter. If Mr Gallagher's visa is cancelled and he is required to return to New Zealand it is likely to cause Ms Wakefield some distress and disappointment. However the relationship only commenced after the applicant was sentenced to prison. He has never lived with Ms Wakefield or at any time financially supported her or her children.
37. It is clear that the applicant enjoys living in Australia and since being in prison has developed a caring relationship with Ms Wakefield and her young son. It is reasonable to assume he will be upset and disappointed if he is required to return to New Zealand. He is for obvious reasons not in current employment and would need to find a new job. His uncle and Ms Wakefield have both assured him of a job. However the Tribunal is not satisfied that either of those assurances will necessarily become a reality. If the applicant's visa is cancelled he will have to re-establish himself in New Zealand. The applicant spent his formative years in New Zealand and has family living there. The Tribunal is satisfied that he should have little difficulty settling back in New Zealand. There will obviously be no cultural or language problems for him. It is reasonable to infer that the applicant is likely to be able to obtain employment or if necessary other means of support as he is a citizen of New Zealand.
38. The applicant has two uncles living in Australia. One uncle is living in Tasmania and the other on the mainland. They are both living independently of the applicant. There is no evidence before the Tribunal suggesting that their lives would be disrupted or in any sense adversely affected by a visa cancellation decision.

LEVEL OF EDUCATION

39. The applicant completed Year 12 in New Zealand. He appeared to be confident and articulate in presenting his case at the hearing. It was clear that he understood the purpose of proceedings and the likely effect of a visa cancellation decision.

PAST FORMAL ADVICE

40. There had been no past warnings given to the applicant about his conduct. He had only been resident in Australia for a relatively short period before he committed the crime of causing death by dangerous driving for which he was imprisoned for 4 years.

CONCLUSION

41. The applicant has committed several driving and related offences in Australia and has shown a serious disregard for Australian laws and the safety of others. His first offence in Australia was committed after being in Australia for less then ten months. About one year after he arrived he committed the crime of causing death by dangerous driving. It involved a motor vehicle race through urban areas of Southern Tasmania over a distance of some 50 kilometres. Only days after committing that crime, which had resulted in the death of an innocent motor cyclist, he was again apprehended driving with a blood alcohol reading of 0.132. He has been involved in three motor vehicle accidents. On two of those occasions he failed to stop and render assistance at the scene of the accident. The Tribunal notes that the applicant has tended to downplay the seriousness of his offences. He said in evidence:

"Having driving offences doesn't make you a bad character as most members of the public have driving offences".

After considering the evidence and despite the rehabilitation courses undertaken and assurances from the applicant that he intends controlling his drinking and to become a responsible citizen the Tribunal concludes that there remains a real risk that the applicant will offend again.

42. A decision to cancel the applicant's visa will cause some distress to him and it is likely also to cause distress to his de factor partner Ms Wakefield. The applicant obviously enjoys living in Australia and says he wishes to settle here and live a law abiding life. The Tribunal is most concerned that after being charged with several offences, making court appearances and having penalties imposed upon him the applicant was not deterred from committing further offences. The question is whether a term of imprisonment will have a greater effect on the applicant's conduct. The Tribunal recognises the efforts the applicant has made during his period in prison and the various courses he has successfully undertaken. However it remains most concerned that after his release from prison he will still pose a risk to the Australian community.
43. As has been mentioned the applicant has expressed a desire to live with Ms Wakefield when he leaves prison. He says he can get work with an uncle and if he cannot then Ms Wakefield who runs a cleaning business has offered to arrange work for him. There is no certainty that these good intentions will come to fruition or there that will be stability in his relationship and in his future employment.
44. Of the primary considerations, the protection of the Australian community weighs very heavily in favour of cancellation of Mr Gallagher's visa. Of all the other considerations under Direction 41 the main factors which would tend to support a decision not to cancel are the efforts he is making to overcome his drinking problems including undertaking the "Getting Smart" course and other courses he has successfully completed in prison and his relationship with Ms Wakefield. Those considerations however fall far short of outweighing the serious concern the Tribunal has that the applicant still poses a risk to the Australian community.
45. After weighing up all the relevant considerations the Tribunal finds that the decision under review should be affirmed.

DECISION

46. The Tribunal affirms the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 1 February 2011

Date of Decision 18 February 2011

Solicitor for the Applicant Applicant on his own behalf

Solicitor for the Respondent Mr D Wilson, Australian Government Solicitor