Cotton and Minister for Immigration and Citizenship [2011] AATA 229 (6 April 2011)

MIGRATION – New Zealand citizen - Special Category (Temporary) visa - cancellation - conviction for multiple offences - character test - exercise of discretion

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

Court	Date	Offence	Sentence
Melbourne Children’s Court	17 July 2001	Drunk in Public Place Possess Liquor under 18 Years Enter any place between 2 platforms Criminal Damage Theft	Adjourned to 16 January 2002 $150 good behaviour bond as Dillon Stewart
Melbourne Children’s Court	4 December 2001	Robbery (3 charges) Theft Armed Robbery (5 charges) Handle/Receive/Dispose of Stolen Goods Armed Robbery	12 month Youth Supervision Order Forfeiture order made re: drugs, associated implements and a knife
Melbourne Children’s Court	16 January 2002	Drunk in a Public Place Possess Liquor Under 18 Enter any place between 2 platforms Criminal Damage (Intent Damage/Destroy) Theft	Dismissed Compliance with Bond/Undertaking as Dillon Stewart
Melbourne Children’s Court	26 June 2002	Armed Robbery Theft (3 charges) Intentionally Damage Property Tamper with Motor Vehicle Shopsteal (3 charges) Unlicensed Driving Use Unregistered Motor Vehicle - Highway Armed Robbery Possess Property being the Proceeds of Crime Breach of Youth Supervision Order Robbery (3 charges) Theft Armed Robbery (6 charges) Handle/Receive/Dispose of Stolen Goods	Convicted 6 month Youth Attendance Order Directed to attend counselling Directed to attend a project in Seaford Forfeiture order made re: large knife Forfeiture order made re: credit card
Melbourne Children’s Court	21 October 2002	Fail to Answer Bail Robbery Breach Youth Attendance order Armed Robbery (2 charges) Theft (3 charges) Intentionally Damage Property Tamper with Motor Vehicle Shopsteal (3 charges) Unlicensed Driving Use Unregistered Motor Vehicle Possess Property being Proceeds of Crime	Convicted Detained in Youth Training Centre Various periods between 7 days and 6 months
Melbourne Children’s Court	1 October 2003	Armed Robbery Obtain Property by Deception Theft Attempted Theft from a Motor Vehicle (2 charges) Theft from a Motor Vehicle (3 charges) Affray (Common Law) Robbery Possess a Dangerous Article Theft of a Motor Vehicle Criminal Damage (Intent Damage/Destroy) Fail to Produce Valid Ticket on request (2 charges) Consume Liquor under 18 years Cross Over Railway – Gates Locked Unlicensed Driving Drunk in a Public Place	Convicted Detention in Youth Training Centre for period of 4 months Fined Licence Cancelled and Disqualified for 6 months On each charge: convicted and fined either $100 or $200
Frankston Children’s Court	15 April 2004	Drive Motor Vehicle Without Licence Shopsteal (2 charges) Refuse or Fail to State Name and Address Behave in a Disorderly Manner Drive in a Dangerous Manner Fail to Give Name/Address to Owner/Rep Use Vehicle Not Safe/Not Roadworthy Use Indecent Language in Public Place Fail to Produce Evidence of Concession - PTC Indecent/Offensive language – PTC Veh/Prem	9 months probation without conviction Directed to continue drug and alcohol counselling and treatment Disqualified from driving for 9 months Aggregate fine
Frankston Magistrates’ Court	26 May 2005	Range of charges relating to illegal abalone fishing	Aggregate fine of $1500 with forfeiture of property
Frankston Magistrates’ Court	25 August 2006	Intentionally Damage Property Unlawful Assault Criminal Damage (2 charges) Unlawful Assault Shopsteal (2 counts) Theft (6 charges) Deal Property Suspected Proceed of Crime Refuse Accompany to Station for Blood Test Number of other traffic related offences Possess Property Being the Proceeds of Crime	Prison terms of 3 months (wholly suspended) on each charge 12 month Community Based Order Ordered to perform 200 hours of community work Directed to attend educational and other programs Directed to undergo assessment for drug and alcohol addiction Directed to submit to psychiatric assessment and treatment Pay compensation of $605 Aggregate fine of $500 Licence cancelled and disqualified for 12 months Convicted $100 fine
Frankston Magistrates’ Court	30 December 2008	Failure to Comply with CBO Shopsteal (5 charges) Dealing with Stolen Property Criminal Damage (2 charges) Theft (3 charges) Unlawful Assault Various traffic and driving offences (inc 5 counts of driving whilst disqualified)	Imprisoned Licence cancelled Disqualified from driving for 4 years Fined aggregate of $1500
Dromana Magistrates’ Court	13 August 2009	Drive While Disqualified Use Unregistered Motor Vehicle – Highway Number Plates not affixed Overtake vehicle when unsafe	Convicted 3 months imprisonment (wholly suspended) Fined aggregate of $1500
Frankston Magistrates’ Court	4 December 2009	Affray (Common Law) Criminal Damage (Intent Damage/Destroy)	Adjourned to date to be fixed
Frankston Magistrates’ Court	21 January 2010	Intentionally Cause Injury Affray (Common Law) Criminal Damage (Intent Damage/Destroy)	18 months imprisonment (concurrent) 18 months imprisonment (concurrent) 18 months imprisonment (concurrent) Non-parole period of 12 months
Melbourne County Court	7 March 2011	Intentionally Cause Injury	12 months imprisonment (8 months suspended for 12 months)

9. Mr Cotton was refused parole in December 2010. He next becomes eligible for parole in about May 2011. He conceded, and the Tribunal finds, that he does not pass the character test.

THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT

10. Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk to the community include:

11. Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence are especially abhorrent to the whole community, particularly against vulnerable persons including minors.

12. Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors. These include the sentence imposed for the offences including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports, and any relevant factors the person provides as mitigating factors.

13. The Tribunal takes into account that the prior offences include numerous convictions for armed robbery, affray and assault dating back to 2001. His most recent convictions include crimes of violence including intentionally cause injury, affray and criminal damage. Several terms of imprisonment have been imposed.

14. On the question of the period between offences and the time since the most recent offences, the Tribunal takes into account that the first conviction occurred in 2001, one year after his arrival in Australia. The offences appear to have been committed at regular intervals since then, with the most recent charges resulting from offences allegedly committed in December 2009.

15. Mr Cotton has an extensive criminal history that also includes dishonesty, drug offences, traffic and driving offences, and offences against property. The Tribunal concludes that the offending conduct is extremely serious.

16. Paragraph 10.1(2) of Direction 41 requires the Tribunal, when assessing the risk of harm to the community, to consider the risk that the conduct may be repeated. That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.

17. On the question of the possibility of re-offending, Mr Cotton told the Tribunal that in prison he has completed programs in violence, anger management and general education, and believes that he is at low risk of re-offending. He stated that drugs and alcohol have been the most significant contributing factor to his offending, but he has completed a two-week drug and alcohol course while in prison and is confident that he has overcome these problems. In a written statement dated
1 February 2011 Mr Cotton said that during his 19 months in prison (which is his first experience of an adult prison) he has realised that he does not want his future to involve crime and that after his release he does not wish to return to prison. He acknowledged his past wrongdoing, but said that he intends to look ahead and to build a new life with his girlfriend and his family free from drugs and alcohol. He said that he believes he deserves a second chance to remain in Australia, and that he will not re-offend. He said that he has never been given any warnings to prove he can stay out of trouble.

18. Under cross-examination Mr Cotton agreed that when he returned to Australia in 2008 he concealed his prior convictions from immigration authorities. He was unsure whether he had committed further offences in New Zealand or had breached bail conditions imposed by New Zealand courts.

19. In a written statement dated 2 February 2011 Mr S Cotton, Mr Cotton’s father, stated that he is able to offer stable and safe accommodation after his son’s release from prison, with a good chance of securing suitable employment. He assured the Tribunal that he has strict rules and that if he becomes aware of any misbehaviour by his son he would not hesitate to contact the Police or other relevant authorities. In oral evidence Mr Cotton’s father said that his son’s offending has been the result of conscious decision-making. He explained that he has not visited his son during the current prison sentence, which he described as an effective form of punishment. Under cross-examination he agreed that he has been unable to prevent his son from re-offending in the past, but he was confident that the current period of incarceration in an adult prison has changed his son’s outlook and attitude.

20. In a written statement dated 1 February 2011 Ms J Wilson said that she has known Mr Cotton as a friend for nine years and is now his girlfriend of two to three months, visiting him weekly and speaking to him daily. She stated that during his incarceration she has seen a change in him since May 2010 and he has set goals for himself, including securing stable employment and building a future with her and his family. Ms Wilson said that Mr Cotton has attended anger management and violence programs while in prison, and has demonstrated that he is mature for his age, to the extent that he would stay out of trouble if allowed to remain in Australia, and that this view is shared by his family, her family and her friends.

21. Under cross-examination Ms Wilson agreed that she has not lived with him and that during their friendship of nine years she was unable to prevent him from
re-offending, although she told the Tribunal that she was not aware of his ten-year criminal history until relatively recently. Ms Wilson emphasised that she would help Mr Cotton to keep out of trouble and expects to live with him either at her parents’ home or at his father’s home after his release.

22. In a letter dated 3 February 2011 Ms H Stewart, Mr Cotton’s mother, said that she had visited him recently in prison after 12 months and stated that she has seen a vast change in him. She noted that the period of imprisonment has made him realise that he needs to modify his behaviour. Ms Stewart said that she intends to re-locate from New Zealand to Australia shortly and is prepared to support him. Ms Stewart did not appear at the hearing, and Mr Cotton told the Tribunal that she is still living in New Zealand. She has not spoken to him recently.

21. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk.

23. In considering the likelihood of recidivism the Tribunal takes into account that the offences are extremely serious and were committed at regular intervals over a ten-year period. Although Mr Cotton has completed short programs in prison relating to anger management, violence and drugs and alcohol, and has received statements of support from his mother, father and Ms Wilson, the Tribunal notes that his mother has seen him once in the past 12 months and has not lived in Australia for some years. There appears not to be a close relationship between them, so her statement that she is planning to re-locate to Australia may not be related to Mr Cotton’s situation. She did not appear at the hearing in person or by telephone. His father has not visited him in prison. The offer of employment is positive, although details of this and his proposed accommodation are somewhat uncertain, particularly as
Mr Cotton has not lived with his father on a full-time basis for some time, and the suggestion of living with Ms Wilson at her parents’ home or with Mr Cotton’s father has not been determined.

24. Although Mr Cotton’s father and two siblings live in Australia, no family member has been able to prevent him from committing offences, and despite assurances there is no persuasive evidence that this situation would change if
Mr Cotton stays in Australia. Mr Cotton has not demonstrated any meaningful insight into the impact of his offending on his victims or the community, and apart from several short programs completed in prison, he has not attended rehabilitation programs that deal with long-term drug and alcohol problems or other issues that have contributed to his offending behaviour. He has been given numerous opportunities by way of bonds, probation, supervision orders, suspended sentences as well as imprisonment and has breached many of these.

25. Ms Wilson referred to her faith that Mr Cotton will stay out of trouble and that they will build a future together. However she has only been in a relationship with him for a short period, which has been during his imprisonment, so that any suggestion of a permanent relationship seems premature. She has not reached a level of commitment to him that she would re-locate to New Zealand to be with him.

26. In all the circumstances, the Tribunal finds that the risk that Mr Cotton will
re-offend is high. Given this finding and the finding that the offences and conduct are serious, the Tribunal concludes that the first primary consideration weighs strongly in favour of cancellation of the visa.

SECOND PRIMARY CONSIDERATION: WHETHER MR COTTON WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

27. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent formative years in Australia, but less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

28. Mr Cotton was aged 13 years when he first began living in Australia, and his second period of residence occurred when he was aged 21 years, so the second primary consideration weighs slightly against cancellation of the visa.

THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR COTTON WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY

29. Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.

30. Mr Cotton lived permanently in Australia between 2000 and 2007 and from 2008 onwards, and his first offences were committed about one year after first residing in Australia, so the third primary consideration weighs strongly in favour of cancellation of the visa.

31. The Convention of the Rights of the Child provides that, in all actions involving children, the best interest of a child is a primary consideration. There is no evidence before the Tribunal to suggest that there are any children under the age of 18 years whose interests would be affected by the cancellation of Mr Cotton‘s visa.

32. The International Convention on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must be considered if relevant. Mr Cotton told the Tribunal that his mother sent him to Australia because of concerns for his safety as she believed that people with whom he was associating were the cause of his problems and his offending while in New Zealand. He said that those issues would remain a problem if he is forced to return to New Zealand.

33. Information available to the Tribunal about human rights and the justice system in New Zealand does not support Mr Cotton’s claims, and there is no persuasive evidence to suggest that he would be at risk of serious harm. In all the circumstances the Tribunal finds that the fourth primary consideration has no practical effect on the application under review.

34. Mr Cotton told the Tribunal that his father, a brother and a sister live in Australia, together with extended family including aunts, uncles, nieces, nephews and cousins. His mother and two younger siblings lived in Australia until February 2010 but now live in New Zealand, although Ms Stewart told the Tribunal that they expect to re-locate to Australia soon. In a Personal Details form dated 9 April 2010 Mr Cotton listed Ms B Williams as his partner since 2005, although in an interview on 10 December 2010 he said that this relationship had ceased. He gave evidence that he and Ms Wilson have been dating for several months but acknowledged that their relationship has been brief. There was no mention of Ms Wilson in the interview on 10 December 2010.

35. Mr Cotton is aged 24 years. This consideration is not relevant to the Tribunal’s consideration.

36. There is no evidence before the Tribunal of any medical condition suffered by Mr Cotton, so this consideration is not relevant to the Tribunal’s consideration.

37. Mr Cotton told the Tribunal that when his mother, brother and sister re-locate to Australia he will have no close relatives in New Zealand, although there are some cousins who live there.

Hardship likely to be experienced by Mr Cotton or his immediate family members lawfully resident in Australia

38. Mr Cotton told the Tribunal that he would suffer hardship if he is forced to return to New Zealand. He said that he would have no place to live and he has no close family members to support him, so re-establishing his life in that country after an absence of ten out of the past 11 years would be extremely difficult. He stated that his employment prospects would be limited because he has no driver’s licence and no motor vehicle. Ms Wilson told the Tribunal that she would be unable to accompany Mr Cotton to New Zealand because she needs to care for her father, and her extended family lives in Australia, although she acknowledged that she would be able to visit him and maintain contact by telephone and electronic communications.

39. The Tribunal accepts that Mr Cotton would suffer some hardship if he is removed from Australia after living here for a considerable period. However he lived in New Zealand relatively recently (2007 to 2008), and is familiar with the culture, the language and the people. He has been employed since 2004 as a bricklayer, labourer and truck jockey, so his job prospects in New Zealand should be favourable. There would be some hardship experienced by his family who are resident in Australia, although there is some doubt about the closeness of his relationship with his parents and other family members. There would be some hardship experienced by Ms Wilson, although any relationship between them is in its early stages and there is no guarantee that their plans for a future together will eventuate.

40. The Tribunal is satisfied that any lack of formal education has not impacted adversely on Mr Cotton’s ability to present his claim, particularly as he has had the assistance of other prisoners in the preparation of the application for review.

Whether Mr Cotton has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act

41. Mr Cotton has not been warned previously about the consequences of his conduct in the migration process.

42. As Mr Cotton has family members in Australia and would suffer some hardship if removed, the Tribunal concludes that the other considerations weigh slightly against cancellation of the visa.

43. The Tribunal has concluded that the first primary consideration concerning protection of the Australian community and the third primary consideration concerning the length of time in Australia before engaging in criminal activity weigh strongly in favour of cancellation.

44. This must be balanced by the conclusion that the second primary consideration concerning whether Mr Cotton was a minor weighs slightly against cancellation, and the conclusion that the other (not primary) considerations weigh slightly against cancellation.

45. After considering all the circumstances of the primary considerations and then the other considerations the Tribunal concludes, for the reasons given, that the factors weighing in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.

I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision of:

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DILLON NUKU COTTON

Administrative Appeals Tribunal of Australia

Cotton and Minister for Immigration and Citizenship [2011] AATA 229 (6 April 2011)