Shi and Minister for Immigration and Citizenship [2011] AATA 83 (11 February 2011)

Last Updated: 11 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5110

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Zi Pei Shi

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 11 February 2011

Place Sydney

Decision

The decision under review is AFFIRMED.

..................[sgd]......................
M D Allen, Senior Member

CATCHWORDS

IMMIGRATION & CITIZENSHIP: Deportation of non-citizen. Protection of Australian Community outweighing all other factors. Articles 17 and 23 of the International Covenant on Civil and Political Rights not applicable to visa cancellation on character grounds. Decision affirmed.

LEGISLATION

Migration Act 1985, S501.

CASES

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81.

Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1992-3) 112 ALR 198

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

Re Oliver and Minister for Immigration and Citizenship [2010] AATA 1049

Re Truong and Minister for Immigration and Citizenship [2008] AATA 515

Joseph, Schultz and Castan – The International Covenant on Civil and Political Rights, 2nd Edition.

REASONS FOR DECISION

11 February 2011

M D Allen, Senior Member

1. By a decision dated 19 November 2010 a delegate of the Respondent cancelled the Applicant’s residence visa on the grounds that he did not pass the character test.
2. Subsection 501(2) of the Migration Act 1958 (“MA”) states:

“The Minister may cancel a visa that has been granted to a person if:

(a)  the Minister reasonably suspects that the person does not pass the character test; and

(b)  the person does not satisfy the Minister that the person passes the character test.”

3. Whereas subsection 501(6) MA states:

“For the purposes of this section, a person does not pass the character test if:

(a)  the person has a substantial criminal record (as defined by subsection (7)); or

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

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

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

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

the person is not of good character; or

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

(i)  engage in criminal conduct in Australia; or

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

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

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

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

4. “Substantial Criminal Record” is defined by paragraph 501(7)(c) MA as where a person has been sentenced to a term of imprisonment of 12 months or more.
5. In exercising the discretion whether or not to cancel the Applicant’s visa I am required, pursuant to section 499 MA to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
6. At the time the Minster’s delegate made the decision in this matter and currently the Ministerial Direction in force is No.41.
7. Direction No.41 dated 3 June 2009 has replaced the earlier direction No.21. The provisions of Direction No.41 are now more favourable to offenders who seek to remain in Australia.
8. Direction No.41 states as it’s objective:

“5.1 Objectives

1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

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.

3) The Government is especially mindful to protect the safety of community’s more vulnerable members, including minors, the elderly and the disabled.”

9. Further general guidance is given in clause 5.2(2) of Direction No.41, namely:

“In reaching a decision on whether to refuse or cancel a visa, a decision maker needs to consider:

(a) the nature of any harm that the person may cause to the Australian Community;

(b) the risk of that harm occurring;”

10. Direction No.41 then goes on to provide that in exercising the discretion whether or not to cancel a visa the decision maker shall take into account four primary considerations and seven other considerations.
11. In these proceedings given the nature of the Applicant’s offences and the sentences imposed it could not be argued that the Applicant failed to meet the character test.
12. The relevant offences committed by the Applicant and the sentences imposed are:

i. Malicious wounding in company; two years eight months imprisonment.

2. Supply a commercial quantity of a prohibited drug; six years imprisonment.
3. Take/detain a person in company with intent to obtain an advantage; four years imprisonment.

13. The Primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction 41 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 a person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;

(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);

(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

14. Paragraph 10.1 of Direction No.41 reads:

“(1) Due consideration is the be given to the Government’s objectives set out in Part 1, paragraph 5 of the Direction.

(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated.”

15. Whereas paragraph 10.1.1 reads inter alia:

“(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

(2) The following are examples of offences and conduct that are considered serious:

...

(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);

...

(f) the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;...”

As stated above, the Applicant has been convicted of malicious wounding in company, supplying a commercial quantity of a prohibited drug, and take/detain a person in company with intent to obtain an advantage.

16. Paragraph 10.1.1(3) Direction No.41 also provides that due regard must be given to the extent of the person’s criminal record, including the number and nature of offences, the period between offences and the time elapsed since the most recent offence. The Applicant has three convictions for offences that took place on 8 June 2002, 15 May 2003, and 13-14 April 2008. The Applicant committed his first and second offences less than a year apart. The Applicant was imprisoned from 15 May 2003 until 14 August 2007 when he was released on parole and committed his third offence just eight months after his release and while still on parole. The Applicant has been imprisoned since 24 April 2008 and upon release was immediately taken into immigration detention on 30 November 2010.
17. The seriousness of the Applicant’s offences can be regarded from not only the sentences imposed but the remarks of the sentencing judges.
18. The first offence in chronological order was that of malicious wounding in company, although he was convicted of supplying a commercial quantity of a prohibited drug before standing trial on the malicious wounding count.
19. On 11 July 2006 before Hulme DCJ the Applicant was arraigned having entered a plea of guilty to one count of malicious wounding in company.
20. Although the Applicant did enter a plea of guilty that was only after Hulme DCJ had ruled on a voir dire the certain identification evidence was admissible. No doubt following that ruling the Applicant received advice as to his best course given the strength of the Crown case.
21. In the course of his sentencing remarks, Hulme DCJ said:

“I am satisfied beyond reasonable doubt that the offender had the knife during the course of the stabbing. He led the group into the attack upon the victim...

...I am not satisfied that it is a reasonable possibility that another offender had the knife, did the stabbing, and then passed the knife to this offender. This alternative scenario is illogical and is not supported by any evidence before me. The incident happens extremely quickly and that also makes this scenario unlikely.”

22. In discussing the objective gravity of the offence the learned Judge stated:

“The objective gravity of this offence is considerable. An attack upon a single victim by a gang of young men at least one of whom was armed with a knife and used it to cause life threatening injuries is little short of horrifying and would be abhorrent to the entire community.”

And referring to subjective features said:

“The offender told the author of the Juvenile Justice report that from the time he left school until he went into custody in May 2003, he was using cannabis, ecstasy and ice which was worth about $430 per week. He received this money from his parents who were, apparently, unaware of what he was spending it on. Why they were regularly giving him such a large sum of money is unexplained. It tends to suggest a lack of parental supervision and guidance.”

23. More importantly, Hulme DCJ said of the Applicant, and comments he made to the Juvenile Justice:

“That may well be so but it is quite a deal short of being remorseful. There is no evidence of the offender exhibiting even a modicum of that emotion.”

He concluded by stating that the material presented in favour of the Applicant fell short of the Applicant persuading him that the Applicant had good prospects of rehabilitation and was unlikely to re-offend.

24. The above remarks of Hulme DCJ proved to be prescient as on 13 April 2008 the Applicant committed the offence of Take/Detain a person in company with intent to obtain an advantage, an offence committed whilst he was still on parole.
25. Prior to his sentencing on the count of malicious wounding the Applicant appeared before Dodd DCJ on 12 November 2003 and pleaded guilty to one count of supplying less than the commercial quantity of the prohibited drug methylamphetamine. Originally sentenced to four years imprisonment with a non parole period of two years this sentence was increased on appeal to six years imprisonment with a non parole period of three years.
26. The judgement of the Court of Criminal Appeal was given by Wood CJ. At paragraph 37 of the judgement, His Honour said:

“The offence involved in this case was a serious offence, having regard to the weight and the purity of the drugs involved, and also to the fact that the respondent knowingly, and with his eyes open, lent his aid to those who directed the supply network, in order to feed his habit and in order to clear a debt.”

Adding however:

“Clearly the case fell well below the middle range of seriousness, since the Respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him.”

27. During a period between 13 and 14 April 2008 the Applicant committed the offence of Take/detain person in company with intent to obtain an advantage. The Applicant had pleaded Not Guilty to this offence and was convicted by a jury after a trial lasting six days.
28. An aggravating factor to my mind regarding this offence is that the victim of the crime was a friend of the Applicant and it was the Applicant who inveigled his erstwhile friend to a place where he was detained and a demand for money was made. Likewise a recording of a conversation between the Applicant and the victim led to the sentencing Judge stating “there did not seem any suggestion of the offender Shi resigning from the continuation of the extortion plot.”
29. As to what the Applicant’s part in the plot was, Hughes DCJ accepted the Crowns description of the Applicant as a “henchman”. I do not accept however that given his part in the offence he was ignorant of the purposes of his co-offenders.
30. In relation to all of his offences the Applicant has maintained that his family circumstances impacted adversely upon him.
31. The Applicant was born in China and when he was six years of age his mother came to Australia ostensible to study English. She remained in Australia and the Applicant and his father joined her in 1999 when he was aged 14. Within two months of his arrival in Australia the Applicants parents divorced and he lived with his father. Initially he attended a one year English language course then attended Randwick Boys High School. Due to his lack of skills in the English language he found it difficult to assimilate either within the classroom or socially. Ultimately he left school halfway through Year 10. He then gravitated towards older Chinese speaking males who were drug users and indulged in criminal activity.
32. In a statement by the Applicant to the Respondent dated 9 January 2010 the Applicant said in relation to the last of his offences:

“I did not intend to commit this crime but unfortunately has (sic) been involved in this case due to my lack of knowledge of law. But I did not hurt the victim at all. The whole situation is out of my expectation and I was so shocked when it happened. I have never involved in any plans or had any intention to induce the victim to the spot while I understand that I still bear the responsibility to go with him.

I didn’t have any financial gain in this matter at all, and based on the facts provided in this case, I have accompanied the victim to the hospital after he was injured, this can be seen as an act of mercy. And most important, the victim stated in the court that he was fully aware that I have never had any intention to do any harm on him.

As stated in the Sentencing Remarks dated 280809, The (sic) Honor accepted to put a hierarch of responsibility in this case of me as to other co-offenders. He found I am less morally culpable insofar as in the hierarchy as was the co-offender. And also The Honor accepted that I am just a henchman in this event.”

33. I do not understand what the Applicant means when he says he was involved in the offence due to his lack of knowledge of the law. One does not have to be a law student to understand that to forcible detain someone and then to demand money from them is wrong.
34. The Applicant also seeks to downplay his role in the crime. I do not accept that when he persuaded the victim to accompany him to where he was accosted by the Applicant’s co-offenders he did not know what was planned, although he may not have known the extent to which his co-offenders were prepared to go.
35. So far as any reference by the Applicant to taking the victim to hospital is concerned, as Hughes DCJ pointed out, this could have been an act of mercy or it could be regarded as making sure the victim did not do anything to stop the extortion being completed by keeping an eye on him. As Hughes DCJ then pointed out later in the recorded conversation there did not seem any suggestion of the Applicant resigning from the continuation of the extortion plot.

THE RISK THAT THE CONDUCT MIGHT BE REPEATED

36. The Applicant was first taken into custody in May 2003. Since that time he has been at liberty for a period of eight months. His current period of incarceration ended on 30 November 2010 and he was immediately taken into immigration detention.
37. A report by the NSW Probation and Parole Service dated 24 September 2009 states:

“He appears to be inclined to minimise his offending behaviour and had difficulty accepting full responsibility of his actions.”

38. Psychologist, Ms Nasr, prepared a report for the Applicant’s solicitor. In that report Ms Nasr states that the Applicant stated that the malicious wounding offence occurred when he was in the presence of antisocial peers who hurt the victim who owed his friends money for drugs. This minimization of his role in the offence does not accord with the facts found in the sentencing remarks of Hulme DCJ and illustrates the comment that the Applicant has difficulty in accepting full responsibility for his actions.
39. Ms Nasr also stated in her report that the Applicant’s impulsivity may represent a background risk factor for him, particularly if he associates with antisocial peers. Although the Applicant states he has ceased contact with antisocial peers he has been in custody. The risk remains that he may come in contact with, or be contacted by, former antisocial peers if released from custody.
40. At paragraph 39.8 of her report, Ms Nasr records the Applicant as stating:

“He noted that while he himself was not overtly aggressive or violent he was often present when his peers would engage in violent behaviour towards others.”

This remark is contrary to the facts found on sentencing for malicious wounding and again demonstrates the Applicant’s lack of insight.

41. During her oral evidence, Ms Nasr stated she assessed the Applicant’s risk of re-offending as low to moderate. Cross examined she conceded that she did not discuss the details of his offences with the Applicant and conceded that he possibly continues to downplay his offending.
42. Given the report of the Probation and Parole Service and the evidence of Ms Nasr together with the Applicant’s own submission of 9 January 2010, I am satisfied that the Applicant does not yet accept full responsibility for his actions and is inclined to minimise his behaviour.
43. The accused in a criminal trial has a perfect right to enter a plea of not guilty and to put the Crown to proof and cannot suffer a heavier sentence for the reasons that he did not plead guilty. A timely plea of guilty is however recognised as objective evidence of an acceptance of responsibility and contrition. The matter was well put by Hogan CCJ in sentencing remarks quoted by Senior Member Handley in Re Oliver and Minister for Immigration and Citizenship [2010] AATA 1049, namely:

“...Although I here point out that effective rehabilitation involves an acknowledgement of one’s wrongdoing, insight into one’s offending and a determination to address those issues”.

44. I note that the Applicant did not at the first available opportunity enter a guilty plea to the offence of malicious wounding, nor did he enter a guilty plea to the extortion charge.
45. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81, Davies J, sitting as President of this Tribunal said at N133:

“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to re-offend...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.” (Authorities omitted).

46. As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1992-3) 112 ALR 198, that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far fetched or fanciful and that the degree of probability of its occurrence is quantitatively low.
47. Compare the remarks of Matthews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 51, namely:

“Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”.

48. In Minister for Immigration and Citizenship v Obele [2010] FCA 1445 Katzman J said of the risk of re offending that paragraphs 5.2(2) and 10.1(2) of Direction No.41 led to a requirement that the potential harm to the community is to be assessed in the light of both the probability of the harm occurring and the nature of that harm.
49. Ms Nasr in her report referred to the Applicant’s drug use stating “substance abuse does not appear to be a current risk factor” She stated the Applicant has explained the reason for his offending, most recently on 13-14 April 2008, due to his association with anti social peers who also abused drugs. Ms Nasr recommends in her report that the Applicant have individual psychological treatment. There is however, no evidence that the Applicant would undergo any such treatment.
50. Although the Applicant states he no longer has contact with his former peers he has been in custody and there is always the possibility that those peers will seek him out. Certainly there is evidence that the Applicant has been in contact with a former acquaintance from Chinatown, a Mr Al-Mir.
51. Given the Applicant’s apparent inability to accept full responsibility for his part in the offences committed by him, the seriousness of those offences and the relatively short period of time over which they were committed including the fact that the last offence was committed whilst on parole, I am satisfied that here is a real risk that the Applicant if released into the Australia community would again re-offend. Given the nature of his previous crimes I find that there exists a real risk that any future offences committed by the Applicant would be serious offences.

WAS THE APPLICANT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

52. The Applicant was aged 14 years when he arrived in Australia. To that extend this primary consideration weighs in his favour. On the other hand a large part of his upbringing and character formation was in China. Such ties to the Australian community that the Applicant did develop appear to have been ethnically based and with persons who had little regard for the law.

THE LENGTH OF TIME ORDINARILY RESIDENT IN AUSTRALIA

53. The Applicant has been resident in Australia since 14 March 1999. He committed his first offence on 8 June 2002 and, with the exception of eight months whilst on parole, has been in custody since May 2003. Given the short time the Applicant was in Australia before offending this factor does not weigh in the Applicant’s favour.

INTERNATIONAL OBLIGATIONS

54. There are no issues regarding any child or children that might be affected by the cancellation of the Applicant’s visa.
55. There is no suggestion that any of Australian’s non refoulement obligations are relevant to this matter.
56. The applicant submitted that his removal would raise an issue under the International Covenant on Civil and Political Rights (ICCPR) specifically Article 17 relating to arbitrary interference with the family. It would seem that the reference to Article 17 alone is an error and Article 23 is the reference intended. Article 23 reads:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Where as Article 17 reads:

“1. No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

57. Whereas I accept that the Applicant’s parents would suffer emotional distress if the Applicant were removed from Australia, I do not accept that his removal would result in a breach of Articles 17 or 23 of the ICCPR.
58. In Joseph, Schultz and Castan “The International Covenant on Civil and Political Rights” 2nd Edition at page 596 the authors refer to the case of Stewart v Canada (538/93) and state:

“Despite the HRC’s concerns over Canadian expulsion policy in its 1999 Concluding Comment on Canada, the HRC majority did not find Stewart’s deportation to constitute an article 23 violation. The Stewart decision demonstrates the HRC’s willingness to defer to the decision of domestic courts where there is no evidence of procedural flaws in those domestic proceedings. Deportation of family members is therefore permissible under articles 17 and 23, so long as the decision is authorized by law and is not manifestly arbitrary, and takes into account the effect of the deportation on the deportee’s family relationships.”

The Stewart case is very similar to the current case as the Applicant Stewart was being deported from Canada following the commission of certain specified offences.

59. It is clearly the case here, that the Applicant is at risk of deportation which is authorised by law, is not arbitrary in that it is a considered decision which is subject to administrative review, with further rights of appeal to the Federal Court, and the extent of disruption to the person’s family, business and other ties to the Australian community are a consideration mandated to be taken into account by Direction No.41, albeit not a primary consideration.

OTHER CONSIDERATIONS:

60. Family ties and the nature and extent of any relationships: The Applicant is the only child of divorced parents. In her submission to the Respondent, the mother stated: “I really need my son to look after me when I am getting old.” The father also in his submission stated “... I truly hope he will be with me all the time and look after me when I am sick”.
61. In the course of her evidence the Applicant’s mother stated that she receives a Disability Support Pension (“DSP”) and had been sharing a house with a “friend”. The depth and nature of that friendship was not explored. Currently her aged mother is staying with her, but her sister who also resides in Australia will assume care of the Applicant’s grandmother when she (the sister) returns from a visit to China.
62. Contrary to what is contained in his submission to the Respondent, the Applicant’s father revealed in his evidence that he has remarried. His current wife is awaiting a visa to come to Australia with her two children aged 14 and 18 years.
63. Although the father stated he was on a Centrelink benefit he conceded that that benefit was a Newstart allowance, which implies that he is regarded by Centrelink as medically fit to undertake some form of employment. Both the Applicant’s father and mother expressed their desire that the Applicant remain in Australia in order to support them in their old age.
64. The Applicant also appears to have close links with his cousin Ms Congli Zhang. Currently Ms Zhang is working in Hong Kong but expects to return to Australia in April 2011. There is no evidence that Ms Zhang should she so desire, would not be able to visit the Applicant in China, indeed cross examined she stated that she visited Shanghai once a year.
65. Previously Ms Zhang has stated that she could provide the Applicant with a job in her accounting firm. I regard that offer as a mere chimera. Ms Zhang’s former accounting practice has been sold to another firm and she is now a contracted employee to a manufacturing company.
66. The Applicant has no ties in Australia apart his parents, an uncle and aunt, cousin and now his maternal grandmother. Whilst they would no doubt be saddened by his deportation I do not accept that these factors outweigh the primary considerations.
67. The age and health of the person: The Applicant is currently aged 26 and no apparent health issues were raised in these proceedings. As an apparently fit young male, considerations of age and health do not mitigate against deportation.
68. Links to the country to which the person would be removed: The Applicant spent his first 14 years in China and is familiar with its language and culture. I note that in these proceedings he gave evidence through an interpreter so still has language skills. Furthermore, he has since arriving in Australia revisited China on three occasions.
69. Contrary to what the Applicant told psychologist Ms Nasr, and contrary to both his and Ms Zhang’s submissions to the Respondent, the Applicant does have familial links in China. In evidence it was revealed that the Applicant’s mother has a brother in China and that his father has seven brothers and sisters.
70. Just what degree of support these relatives may be able to offer the Applicant is not known but the fact remains that contrary to previous information given the Applicant does have relatives in China and no doubt would be able to call on them initially to assist his reabsorption into Chinese society.
71. Hardship likely to be experienced by the person or their immediate family members currently resident in Australia: The Applicants parents are both in receipt of Centrelink benefits. The father has remarried and the mother has her sister and niece in Australia and has a “friend” with whom she was sharing a house. I do not accept that any of the Applicant’s relatives will suffer hardship as a result of his deportation.
72. As for the Applicant, no doubt life will be harder for him in China, but as stated he is a young, fit male who was raised in China until age 14. Exhibit R3 at page 44 shows that whilst at Goulburn gaol he was trained as a cook, so he has some skills. His ability in English will also be of some advantage. I do not see the Applicant suffering any hardship of such a degree as to mitigate against deportation.
73. Level of Education: The Applicant was educated in China until age 14. He now has had some exposure to the English language although his formal level of education is quite low. Apparently whilst in gaol he has done some computing courses. I do not regard this factor as relevant to my decision.
74. Direction No.41 at paragraph 11(3)(f)(ii) refers to a persons capacity to contribute to the Australian community through employment. More importantly it may be assumed that if a person has regular employment they will be less likely to re-offend.
75. Evidence was given by a Mr Sam Al-Mir that he had made an offer of employment to the Applicant.
76. Mr Al-Mir is now the sole director of a plant hire company. Mr Al-Mir first met the Applicant when he was running a security company in Sydney’s Chinatown. Apparently the job offered is that of a clerk and the salary was stated to be $75,000.00 per annum.
77. There was conflicting evidence as to how this job offer came about. The Applicant stated that Mr Al-Mir had maintained infrequent contact with him, that he had visited once whilst he was in Villawood Migration Detention Centre but often communicated with him by telephone. Mr Al-Mir said that he had known the Applicant for several years and a person had told him of the Applicant’s circumstances so he visited him in Villawood. After speaking with him he offered him a job.
78. Questioned, Mr Al-Mir did not know the rate of pay for a clerk. I find it difficult to believe that a person of the Applicant’s educational level and English language abilities could attract a salary of $75,000.00 per annum as a clerk. I have doubts as to the genuineness of this purported job offer by Mr Al-Mir and note that the proposed contract of employment contains a three month probation period so continued employment is not ensured.
79. I do not regard the prospect of employment upon any release from detention as favouring a decision in the Applicant’s favour.
80. Whether the person has been formally advised in the past about conduct that brought the person within the deportation or character provisions of the Migration Act: The Applicant on 4 December 2007 signed an acknowledgement that he could be considered in the future for cancellation of his visa should information of relevance come to the attention of the Department of Immigration. This followed a decision on 23 November 2007 by the Minister for Immigration not to cancel his visa although the Applicant had failed to satisfy him that he passed the character test.
81. The Applicant committed his most recent offence on 13 April 2008, that is to say just a little over three months after signing the acknowledgement of possible visa cancellation in the future.
82. In Re Truong & Minister for Immigration and Citizenship [2008] AATA 515 Senior Member Handley said at paragraph 22:

“Of particular concern however has been the repetition of the Applicant to offend, despite being put on notice that he was at risk of having his visa cancelled.”

83. I also note that in 2007 the Applicant’s father stated that he would take the responsibility to help and look after his son if his visa was not cancelled. Likewise his mother said that she would pay all her attention to assist him in going back to school and work. Obviously those efforts failed.
84. As stated above I acknowledge that his parents will suffer some distress if the Applicant’s visa is cancelled but in my opinion the protection of the Australian community outweighs all other factors. The Applicant had previously been warned of possible visa cancellation but went on to commit a serious offence whilst still on parole. I find that there is a real risk of the Applicant re-offending and that any future offence(s) would be serious. The Decision under Review is AFFIRMED.
    

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

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

K. Lynch, Associate

Dates of Hearing 31 January and 1 February 2011

Date of Decision 11 February 2011

Counsel for the Applicant Mr N Poynder

Solicitor for the Applicant Peter Bollard Solicitors

Solicitor for the Respondent Ms J Cumming, Clayton Utz