McVey and Minister for Immigration and Citizenship [2012] AATA 5 (5 January 2012)

Last Updated: 6 January 2012

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/4432

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PATRICK MCVEY

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 5 January 2012

Place Perth

Decision

The decision under review is affirmed.

.......(sgd) S D Hotop.........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a citizen of United Kingdom – applicant first arrived in Australia in 1969 when aged seven years – applicant has lived in Australia since arrival – applicant first convicted of criminal offence in 1976 – applicant consistently convicted of offences throughout period 1976-2011 – applicant convicted of serious sexual offences in 1994 and serious drug offences in 2005 and 2011 – applicant formally warned by Department about visa cancellation in 2007 – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – best interests of children and other primary and relevant considerations favour non-cancellation of visa – protection of Australian community outweighs all other considerations – preferable decision is that visa be cancelled – decision under review affirmed

Migration Act 1958 (Cth), s 501(2)

Direction [no 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

5 January 2012

Deputy President S D Hotop

INTRODUCTION

1. Patrick McVey (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 6 October 2011, cancelling his Class BB Subclass 155 (Five Year Resident Return) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

THE FACTUAL BACKGROUND

2. The applicant was born in November 1961 in Scotland and is a citizen of the United Kingdom (“UK”). He first arrived in Australia on 28 March 1969 and, with the exception of the period from 20 September 1999 to 1 October 1999, he has remained in Australia since that date.
3. On 29 March 2011 the applicant, on his pleas of guilty, was convicted in the Perth District Court of the following offences:
   • one count of attempting to manufacture a prohibited drug, namely, methylamphetamine;
   • one count of burglary and committing an offence in a dwelling.

He was sentenced to imprisonment for two years for the former offence and to imprisonment for nine months (to be served concurrently) for the latter offence.

4. On 6 April 2011 the applicant, on his plea of guilty, was convicted in the Perth Magistrates Court of the following offences, and was sentenced as follows:
   • one count of driving whilst disqualified – six months’ imprisonment;
   • seven counts of possessing stolen or unlawfully obtained property – six months’ imprisonment on each count;
   • one count of possessing a prohibited weapon – six months’ imprisonment;
   • two counts of possessing a prohibited drug, namely, cannabis and methylamphetamine – six months’ imprisonment on each count.

All of these sentences were to be served concurrently with the sentences referred to in paragraph 3 above and with each other.

5. On 6 October 2011 a delegate of the respondent decided to cancel the visa under s 501(2) of the Act.

THE RELEVANT LEGISLATION

6. Section 501(2) of the Act provides:

“ 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.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

THE MINISTERIAL DIRECTION

7. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and 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. ...”

Direction [41] will be relevantly referred to in more detail later in these reasons.

THE EVIDENCE

8. The evidence before the Tribunal comprised:
   • the “G Documents” (G1 – G19, pp 1−147) lodged by the respondent on 4 November 2011 (Exhibit R1);
   • letter from the Prisoners Review Board, dated 7 November 2011, and attached copy of the Board’s decision regarding the applicant’s parole, dated 31 August 2011, tendered by the respondent (Exhibit R2); and
   • the oral evidence of the applicant.

THE APPLICANT’S CRIMINAL HISTORY

9. The applicant’s recorded criminal history is set out in a Police Certificate issued by the Australian Federal Police to the Department of Immigration and Citizenship (“Department”), dated 23 June 2011 (G14).
10. The applicant’s criminal record comprises convictions of approximately 133 offences commencing in April 1976 and continuing from that time until April 2011.
11. The applicant’s criminal convictions in respect of which a custodial sentence was imposed are (in chronological order) as follows:

Court	Conviction Date	Offence	Sentence
Perth District Court	09.11.1987	Break, Enter and Steal (5 charges) Break and Enter Dwelling with intent (2 charges) Stealing	On each charge: Imprisonment 6 months(concurrent) Imprisonment 3 months (concurrent)
Perth Court of Petty Sessions	08.06.1991	Steal by finding Stealing Unlawful possession (3 charges)	Imprisonment 3 months Imprisonment 3 months (cumulative) On each charge: Imprisonment 3 months (concurrent)
Perth District Court	30.11.1992	Stealing Threats to Kill/Injure	Imprisonment 12 months Imprisonment 12 months (concurrent)
Perth Court of Petty Sessions	18.11.1993	Damage	Imprisonment 1 month (cumulative)
Supreme Court of Western Australia	30.05.1994	Sexual Penetration Without Consent (3 charges)	On each charge: Imprisonment 7 years (concurrent)
Rockingham Magistrates Court	18.03.2003	Drive whilst disqualified	Imprisonment 6 months (suspended for 12 months)
Perth District Court	09.12.2005	Amphetamine possess with intent Breach of Intensive Supervision Order (imposed 16.08.2004) Manufacture Prohibited Drugs	Imprisonment 2 years 6 months Imprisonment 6 months (concurrent) Imprisonment 3 months (concurrent)
Perth Magistrates Court	09.12.2005	Possess Prohibited Drug with Intent Firearm possessed no licence Possess unlicensed ammunition (2 charges) Possess weapon with Intent to cause fear Possess prohibited weapon Possess controlled weapon	On each charge: Imprisonment 6 months (concurrent) Imprisonment 3 months (concurrent) On each charge: Imprisonment 1 month (concurrent)
Rockingham Magistrates Court	18.03.2008	Drive whilst disqualified	Imprisonment 6 months 1 day (suspended for 12 months)
Perth Magistrates Court	31.03.2008	Drive whilst suspended Drive whilst disqualified	Imprisonment 7 months (cumulative) Imprisonment 6 months 1 day (cumulative)
Mandurah Magistrates Court	12.05.2009	Drive whilst disqualified Drive whilst disqualified (2 charges)	Imprisonment 9 months On each charge: Imprisonment 3 months
Mandurah Magistrates Court	17.06.2009	Drive whilst disqualified	Imprisonment 3 months
Rockingham Magistrates Court	05.08.2009	Drive whilst disqualified	Imprisonment 3 months
Perth District Court	29.03.2011	Attempt Manufacture a Prohibited Drug Burglary and Commit Offence in Dwelling	Imprisonment 2 years Imprisonment 9 months (concurrent)
Perth Magistrates Court	06.04.2011	Drive whilst disqualified Possessing stolen or unlawfully obtained property (7 charges) Possessed a prohibited weapon Possess a prohibited drug (2 charges)	Imprisonment 6 months (concurrent) On each charge: Imprisonment 6 months (concurrent)

12. The most serious offences of which the applicant has been convicted are:
    • the offences of sexual penetration without consent for which he was sentenced on 30 May 1994;
    • the drug-related offences for which he was sentenced on 9 December 2005; and
    • the drug-related offence for which he was sentenced on 29 March 2011.

THE SENTENCING REMARKS OF SCOTT J ON 30 MAY 1994

13. In sentencing the applicant for the abovementioned offences of sexual penetration without consent, Scott J said:

“... You two may remain seated for the moment. On 12 May 1994 you were convicted of the following offences: McVey, three counts of aggravated sexual penetration; the circumstances of aggravation being that you were in company and that you did bodily harm to the complainant. [B] ...: one count of aggravated sexual penetration; the circumstances of aggravation being that you were in company and that you did bodily harm to the complainant and one count of indecent assault.
The facts are that on the date of the offence you, [B]..., had joined up with McVey and eventually gone with him to the Coogee Caravan Park to a cabin in which he lived with the complainant, his de facto wife, ... During the course of the afternoon and evening you consumed a considerable quantity of liquor and all three of you became intoxicated.
Later in the evening [the complainant] put her two children to bed in the double bed in the cabin and the drinking continued. Eventually [the complainant] decided to go to bed and she shifted to (sic) the two children into their bunks in the other room. She then went to bed and fell asleep. [The complainant] was awakened to find you, [B], on top of her. She pushed you off and then you, McVey, climbed on top of her and proceeded to sexually penetrate her.
Whilst this was happening you, [B], decided that the complainant should give you oral sex. You exposed your penis and put it close to [the complainant’s] face. Whilst that was happening you, McVey, told [the complainant] to suck [B]’s penis. You, [B], then proceeded to masturbate with your penis in that position.
All of that conduct was witnessed by a neighbour, Mr [L], who, disturbed by the noise of the incident, came to the cabin door and saw what was happening through the open door. At or about the same time you, McVey, succeeded in partially penetrating the complainant and then commenced to slap her repeatedly about the face.
That slapping later became more violent and eventually you punched her in the face. After you got off [the complainant], McVey, you, [B], got on top of her and you also partially penetrated her with your penis. McVey was encouraging you so to act. When that finished you, McVey, again got on top of [the complainant] and while continuing to assault her, proceeded to penetrate her again with your penis. Eventually [the complainant] was able to get away. You, [B], realised that the incident had gone too far when McVey punched [the complainant] in the face and you helped her to get away.
[The complainant] was able to grab her two sons and ran from the cabin and sought help. You, McVey, chased her and would have continued with the assault upon her, but for the fact that your two children were present with her. In the course of the trial each of you had no hesitation in denigrating and using disparaging remarks about [the complainant]. You, [B], in your evidence called her a slut on a number of occasions.
Your attitude shows no remorse at all and there is no indication from either of you that would give the court any confidence in your prospects of rehabilitation. You each have significant criminal records and each have previously been sentenced to imprisonment. I can see little to distinguish between you in the conduct on the night in question.
You each sexually assaulted [the complainant] without any thoughts or consideration for her feelings. McVey, on each count of aggravated sexual assault, you are sentenced to 7 years’ imprisonment to run concurrently.
...
McVey, you are entitled to credit for the period in custody between 19 February 1994 to 30 May 1994 and allowing for remissions, I will credit that as 6 months. On the question of parole, whilst I have said that there is little about either of you to give the court any confidence that you will rehabilitate yourselves, I note in addition that you, McVey, had been released from prison on 28 March 1993 following your conviction in the District Court for offences of stealing and threatening to kill or injure and that these offences occurred only 4 days after you were released and whilst you were on parole for those serious offences.
You were well aware of that fact and in a phone call to the complainant on the day after these offences you said to her that you would likely be returned to goal for breach of parole as a result of the commission of these offences. I have reached the view that in each case because of your age and the positive things said about you and the recommendations in the pre-sentence report a parole order can be made. However, should either of you breach that parole by committing further offences it is unlikely that a parole order will be extended to you again in the future.
...” (G9, pp 70-71)

THE SENTENCING REMARKS OF CRISFORD DCJ ON 9 DECEMBER 2005

14. In sentencing the applicant for the abovementioned drug-related offences of which he was convicted on 9 December 2005, Crisford DCJ said:

“... Please stand, Mr McVey. You have been convicted on your own plea of two counts. Firstly, on 12 July 2004 you attempted to manufacture cannabis oil and secondly, on 15 August – sorry, the first one was 12 July 2004 – secondly, on 15 August 2005 you possessed a prohibited drug, methylamphetamine, with intent to sell and supply. In relation to the first matter, the statutory penalty is that of a $50,000 fine and/or 12 and a half years’ imprisonment, and secondly, in relation to the methylamphetamine, the statutory penalty is doubled, and that’s $100,000 fine and /or 25 years.
So you can see in relation to both matters they’re very serious and are viewed that way by the legislature. In relation to the methylamphetamine, you had 21.51 grams of between 25 to 32 per cent purity, and at the time of that offence you were on an intensive supervision order. That order had been imposed on 16 August 2004, and that was for cultivating cannabis with intent to sell and supply, and the duration of the order was 18 months. That order arose from the same date as the manufacturing or attempt to manufacture cannabis oil.
In relation to those first matters, the police attended your residence and whilst they were there they discovered a reasonably elaborate hydroponic set-up in a locked bedroom. I’m told there were 12 large plants between 50 to 60 centimetres. These plants were under high-powered lights, there was an irrigation system, the walls were lined, there were nutrients available. There were also 14 small plants of 10 centimetres.
There were 28 seeds, but I note they were dead. They also located an esky containing some 10 kilograms of water, methylated spirits and cannabis leaf material, and I’m told and I accept that the leaf material was left over from the hydroponic cannabis. You were using only the head material from that growth. Now, I also accept, as does the State, that this was an amateurish attempt at a very entry level.
Going to the second matter, which is more serious. On 15 August 2005 at about 2.50 am you were in a motor vehicle. $3940 was located, clipseal bags were located, and it was accepted that the money was the proceeds of a sale. At the time of this offence you were on bail for the first matters, and also on the intensive supervision order. You have provided me with a letter, and I have read that letter and I accept you have some understanding of the impact of your behaviour on family and on yourself.
You are 44 years of age. You’re not a young man. You have four children, 17 and 16, and six and seven, and you do have some contact with all of them. You have an entrenched drug habit. Originally I’m told it was heroin, but now methylamphetamines. ...
You do have a prior record which is extensive. It commenced in 1975. The first drug offence was in 1984 and there are drug offences fairly regularly thereafter. You have pleaded guilty at an early opportunity and you will get credit for that. In relation to the second matter of methylamphetamines, that was a fast-track plea and you will get substantial credit. In relation to the first matter, it was a committal for trial, but I accept it was on a different charge, and when the charge was amended, the plea of guilty followed fairly swiftly, and again you will get credit for that.
The cannabis oil – the attempt to manufacture cannabis oil – was a fairly basic attempt. It was for your own use and perhaps exhibited a degree of hope over experience in the operation. However, in relation to the hydroponic growing of cannabis, this involved clearly a degree of planning and sophistication and in that regard I note the particular equipment involved. In recent years the courts have had a clearer perception of the harm and dangerousness of cannabis.
In relation to methylamphetamines, it’s on the high end of the scale of seriousness of drug types. It’s a vehicle for death and destruction in this community, especially for the young in the community. You were a user/dealer, and these drugs cause the breakdown of families and is behind much of the criminal offending. The amount here is not insignificant and it’s of a high purity, and as I have said, there was the indicia of active dealing when you were apprehended.
As I have said, in relation to this matter, it’s a bit of a balancing act. You are not a young man. The methylamphetamine matter is serious. I do accept some is for your own use but you certainly made admissions relating to its sale. You were on bail and also subject to an intensive supervision order at the time. You have pleaded guilty at an early stage. Your personal circumstances, quite frankly, are of very little significance in this matter. I need to consider carefully general and personal deterrence and both of those matters relate fairly and squarely to you.
Now, I intend to sentence you to a term of immediate imprisonment and I intend to sentence you under the new provisions, but you will receive no more than if I was sentencing you under the old provisions. Firstly, I will deal with the matters arising out of 12 July 2004 and in relation to cannabis oil attempt, bearing in mind the statutory penalty and that this was an entry level matter, I intend to impose a term of three months’ imprisonment.
In relation to the breach of the intensive supervision order I intend to impose a term of imprisonment of six months, and those two terms will be served concurrently. In relation to the matter arising out of the methylamphetamine, as I have said, this is a very serious matter. You were on a bail and on intensive supervision order at the time. It was not an insubstantial amount and it was of a high grade.
I intend to impose a term of imprisonment of two years and four months, and that term will be cumulative upon the terms for the cannabis matters. I intend to backdate your sentence to 15 August 2005 and you will be made eligible for parole. ...” (G10, pp 92-95)

THE SENTENCING REMARKS OF YEATS DCJ ON 29 MARCH 2011

15. In sentencing the applicant for the abovementioned drug-related offence on 29 March 2011, Yeats DCJ said:

“You’ve now been convicted on your own pleas of guilty of one count of burglary of a dwelling and one count of attempting to manufacture methylamphetamine.
The offences arose in quite unusual circumstances. You became homeless. You’d been staying in someone’s shed. You had one week’s notice to find another place to live. You had a partner with you, and somebody mentioned that there was a house that was unoccupied and appeared to be derelict or abandoned, but still had water and electricity.
So you went to the house. It turns out it was a house that had been recovered from a drug trafficker back in 2008 and nobody was living in at the time, the drug trafficker being in prison.
When you arrived at the house you found all sorts of gear to manufacture methylamphetamine. You don’t know how to do that, but you went to the Internet and found a recipe, the Nazi method or Birch, whatever they call it, the reduction method. And it’s quite a dangerous method of making methylamphetamine, as we’ve seen within the last few weeks, with one that blew up and badly burned a number of people.
I’m told that you didn’t do it successfully, that you made yourself ill in the process and went to lie down. And by the time you got up, the police were there, probably being alerted by neighbours to the funny smells coming out of your property. Apparently the odour for the neighbours can be quite obnoxious.
Now, you’ve written me a letter. You’ve spent quite an amount of time in custody, 25 August 2011[sic]. I have to backdate your sentence to that date, so you’ve been in custody since these offences were committed.
I also have a report that from all of the gear that you accumulated, including the pseudoephedrine and everything, that you were capable of making about 6.05 grams of methylamphetamine, but it would have been 80 to 90 per cent pure, which is – you’d know from your experience could have been cut down many, many times to bring it down to street user level. So it was a substantial operation in that regard; that you would have produced a lot. However, I’m sentencing you on the basis that it was for your personal use.
When we’re dealing with manufacture however the courts have made it clear that that is virtually irrelevant. Bringing a dangerous drug such as methylamphetamine into existence, even for your personal use, is so serious that people are regularly imprisoned for that.
Now, Mr McVey, you’re 49 years of age. You’ve had quite a chequered career, most recently being a tattoo artist. Your record of prior offending is a startling one, just in the volume of it, but then you’re not young.
You started in the Children’s Court in 1976, moved up to the Rockingham Court of Petty Sessions, and your offences include drug offences, traffic offences, some burglary, some stealing, some forgery, some uttering, some possession of weapons and other items, stolen items false name. And in 1994 you were imprisoned for seven years on three counts of sexual penetration without consent. So you have prison time that you’ve experienced in your life.
Now, I’ve today declared you a drug trafficker, because the second count on the indictment is your third, at least, serious drug offence conviction. And even though you previously had been declared a drug trafficker, I do it again.
Although there’s not a lot to say in your favour, I have read carefully the letter that you wrote and sent to me. I would say, Mr McVey, sitting in prison you’d start to think thoughts like you’ve said to me. You don’t want to stay there and you don’t want a long sentence and you’d like to get out as soon as you can.
I think if you don’t do the Palmerston – and I know they’re assessing you at the moment and it may be that you’ll be able to do a program there – but if you don’t get hold of yourself and turn away from your drug addictions, you might as well just stay at the prison, because you’ll be coming back. That’s the way life is and that’s too bad.
I’m looking at how I should deal with you, I’ve read your pre-sentence report, which indicates you’re not suitable for further community based treatment. And the psychologist is quite negative that there’s – it says your prognosis for change is poor, and the emphasis on 110 previous convictions.
But you tell me different things and I accept that you’ve done a lot of programs, and I hope you are actually turning around, turning your life around. The court and the people of Western Australia would be delighted to have you being useful, instead of a burden on the State.
Now, in sentencing you, I take account of your early plea of guilty. Early pleas of guilty have saved the State and the community a good deal of time and resources, and you need substantial credit for that. I also take account of your remorse, such as it is. I suspect that you could well have done it again if you’d had the opportunity.
I mean, we’re all old enough to know that it’s easier to look back and believe you’ll never offend again, but you need an awful lot of treatment and an awful lot of ways that you can stop yourself from offending. You’ve been going on a long time.
My duty is to do it fairly, but very carefully sentence you. I don’t want to give you a crushing sentence and I don’t want to remove hope from your life. If you would stand, please.
For the burglary of a dwelling, I’m going to impose nine months’ imprisonment, simply because nobody was living there and it didn’t really do any harm to anyone.
For the offence of attempting to manufacture methylamphetamine, however, I am imposing a two year sentence of imprisonment. It’s just too serious to try to manufacture methylamphetamine. It’s a dangerous drug and it’s a dangerous process.
I’ll order that those be served concurrently.
I’ll backdate your sentence to 25 August 2010. That means that on the – and I’ll order that you be eligible for parole. That means that on 25 August this year you will actually become eligible for parole.
Now, I think that if you are accepted by Palmerston and if you continue to try to do the programs that might stop you from further drug use that you may end up being successful on parole. I don’t know, that’s not a matter in your application for release. But you have two year term.
You’ll have to serve the first year and then you’re eligible, and it’s a matter for the Prisoner (sic) Review Board.” (G12, pp 103-105)

THE DECISION OF THE PRISONERS REVIEW BOARD

16. By letter dated 31 August 2011, the Deputy Chairperson of the Prisoners Review Board informed the applicant as follows:

“The Prisoners Review Board today considered your case and made the following decision based upon the reports and information presented to it:

• Deny Release on Parole.

For the following reasons:

1. Serious nature of current offences involving drug related offending.
2. Extensive criminal history over a 35 year period including violence, drugs, firearms and sexual penetration without consent.
3. Unmet treatment needs (substance abuse).
4. Absence of motivation to change and lead a pro-social lifestyle as demonstrated by unwillingness to participate in Pathways program if release on parole is denied.

Unlikely to comply with the requirements of parole in view of:

1. Three most recent supervision Orders cancelled for non-compliance for re-offending (Parole Orders in 2007 and 2009 and Intensive Supervision Order in 2005.)

...” (Exhibit R2)

THE APPLICANT’S EVIDENCE

17. The applicant confirmed that he had written the following letter (undated) to the Department in response to the Notice of Intention to Consider Cancellation of the visa, dated 24 August 2011 (G6):

“My name is Patrick McVey and I am writing in response to the above mentioned consideration.
I am 50 years of age and am currently incarcerated in Karnet Prison Farm. I was sentenced to a term of two (2) years and have eleven (11) months remaining. I was convicted of attempting to manufacture a prohibited drug for personal use.
Since I have been incarcerated, I have had no positive urinalysis tests, or, any prison charges. I have made positive gains in my rehabilitation by attending numerous voluntary courses that are made available in the prison system. These courses have given me great insight into the reasons why I felt the need to partake in these types of drugs. I found the Cognitive Skills particularly beneficial as it was the bridging factor between my past and the present. Also, the PAST drug course was beneficial as it contained the same criteria as the Pathways course, which was not available to me before my parole due date. In say that, I am continuing my rehabilitation by attending Narcotics Anonymous on a weekly basis.
I have completed a Certificate 1 and 2 in engineering which has given me the appropriate qualifications to allow me to apply for positions that I was not qualified to do prior.
I arrived in Australia in 1969 with my parents Patrick and Esther McVey and have resided in Perth WA since arriving. Currently my Father Patrick, who is seventy six (76) years of age, has been placed at John English Hospice in Rockingham to be cared for due to Alzheimer’s disease. This has caused much anxiety for my Mother who is seventy eight (78) years of age and living in the family home by herself. She, sadly, is also in and out of hospital due to on going treatment from cancer, knee replacements, diabetes etc. Upon my release, I will be residing at the family home with my Mother so that I am able to care for her and relieve some of the burden from my Mother in relation to my Fathers absence from the family home due to his illnesses. If I were deported, this would cause an extra stress for my parents that I feel they can ill afford.
I am fifty (50) years of age and have two sons that are working hard in there chosen career paths, ..., who is moving into the final stages at university where he is studying as a doctor and ..., who has chosen his career path in the entertainment industry. I also have ... and ..., who are thirteen (13) and eleven (11) respectfully; both living with there Mother and are attending primary school, which they enjoy and are doing well. All the boys still play a substantial roll in my life and would be greatly affected if we were not able to remain together. It would not be possible for my two youngest to travel out of the country to visit, or for me to return to see them, also I would be going to a country that I have no connection with.
I would like to say, that at my age, I should have known better than to put myself in this position. In saying that, I understand that this is the second occasion I have submitted myself to this process, but would say in my defence, that on the previous occasion I feel I was not emotionally ready to accept the seriousness of the issues. I would also say that I have gain insight into the reasons I have acted in the manner that I did. This, I can contribute to the programs I have attend while incarcerated. They have given me the tools I have lacked in the past and would dearly like to take this opportunity to spend my remaining time in my life, to use these skills to care form my parents and teach my children the values that bring about a better way of life.
In finishing, my family and I understand that my past behaviour is not what would be considered pro-social, but as explained above, I am now at the cross roads of my life and have an understanding that the most important thing in life is family. It is extremely important to me to now pass on to my children the value of living a life of positive values that is beneficial to them and the wider community.
Thank you for taking the time to consider my submission and would like to add that my past is not a reflection of the individual I am now.” (sic) (G17, pp 128-129)

18. The applicant also gave oral evidence to the following effect:
    • he came to Australia in 1969 when he was “seven or eight years old”;
    • he has left Australia only once – when he went on a 10-day holiday to Bali in September 1999;
    • he has uncles and aunts in Scotland but they are in their 80s;
    • his family members in Australia comprise his mother (his father has recently passed away), two brothers, a sister, and four children, aged 21, 19, 13 and 11 years;
    • one of his brothers recently returned to Australia after living in England for two years and during that period he visited their relatives in Scotland;
    • he and his other family members in Australia have not kept in touch with their relatives in Scotland;
    • he is “ashamed of” his criminal record;
    • he commenced offending when he was “14 or 15 years old”;
    • approximately 106 of his offences were “minor” and were dealt with in Petty Sessions;
    • approximately 10 of his offences were “more serious”;
    • he was a habitual offender but “not any more” – he has “changed [his] ways”;
    • the change occurred even before his most recent arrest for attempting to manufacture methylamphetamine;
    • it “went wrong” – he made himself “really sick” and “passed out” and when he recovered he decided that he wanted nothing more to do with drugs;
    • he had started his rehabilitation even before he was sentenced;
    • he had “kicked the heroin habit earlier in [his] life” and he knows he “can do it”;
    • he started drinking and taking drugs when he was “14 or 15 years old” as a result of joining in with the “wrong crowd”;
    • he used heroin from the age of 19 or 20 years until he was 35 or 36 years old in about 2001;
    • amphetamines are now his “main problem” – he started taking them about 10 years ago;
    • he is now addressing that problem “big time” – he goes to Narcotics Anonymous meetings every week and he commenced the “Pathways” program in November 2011 and he is due to complete it in February 2012;
    • rehabilitation courses which he did previously “did not sink in” but he is now understanding what is being said at the course and “it is sinking in”;
    • he has already lost half his life to drug use and prison, and he has “too much to lose” if he gets into trouble again;
    • he now has the motivation to succeed – he has “a lot of making up to do” and he has “no more chances” with his family;
    • now he is “sticking with it” because he is doing it for himself;
    • he still has “heaps to learn”;
    • he knows that “situations will arise” that he will have to deal with;
    • as regards the Prisoners Review Board’s decision to deny him parole, the Board’s 4^th reason is wrong – the “Pathways” program was previously unavailable to him, and as soon as it was offered he “jumped at it”;
    • he was a good father to his two older children – they have not been in any trouble and are doing well;
    • he has not been a bad role model or a negative influence on his two younger children;
    • his younger children are at an age when they need to be directed by him;
    • they have written letters of support for him but they have told him that if he gets into trouble again there will be no more letters of support;
    • he “split up” with their mother in 2007 – she is now in poor health and needs him to help her care for the children;
    • he has been receiving monthly visits in prison from his ex-wife and the children;
    • he has not made regular payments of child support but when he has had money he has helped them out;
    • if he is removed from Australia his children would not be able to visit him and his life with his family would be “closed off completely... there is no bond when you only see them on a video screen”;
    • he would also miss out on being a grandfather;
    • his removal from Australia would also make all his rehabilitation courses “a complete waste of time”;
    • when he is released from prison he will live with his mother who is not in good health and needs his support;
    • he has previously worked as a labourer but he now has welding skills and a “bobcat ticket”;
    • “it was a stupid mistake to try to make [his] own drugs... it made [him] really sick... if that is not an incentive to stay away from drugs, [he does] not know what would be”;
    • his bond with his children is “as strong as always” – he now has “too much to lose” – he has to change.

LETTERS OF SUPPORT

19. The following letters of support for the applicant appear in the G Documents.
20. A letter (undated) from the applicant’s mother states as follows:

“I am writing this letter in support of my son Patrick McVey remaining in Australia, as he faces deportation to the United Kingdom.
I arrived in Australia in 1969 from Scotland with my husband and children. My son Patrick was 7 years old at the time. We have all lived in Australia with permanent residency since that time and consider it home; never having returned to Scotland or the UK since.
Over the past few years both my husband and I have become seriously ill, and are now reliant on our children for support and assistance.
My husband has dementia and requires constant care. I am unable to cope with his condition on my own, and I am under a lot of stress. Due to this I have suffered major depressive episodes over the past few years and been hospitalised on several occasions because of it. My last hospital stay ended only 2 days ago.
If my son Patrick were to be deported, this would cause me great distress. My health is already affected and this situation would only add further stress to my already stressful circumstances. I rely on my children for their support and help, and I need Patrick here with me and my husband. I plead with you to allow my son to remain in Australia.” (G19, p 146)

21. A letter (undated) from the applicant’s 13-year-old son states as follows:

“ I am writing this to try keep my father able to see me grow up in to a man. Although he has missed many great moments in my life he has tried his absolute hardest to get to all my birthdays and other moments. I have not seen my dad much in most of my life but all the times I have, they have been great, I hope I have another chance to see him. You do not have to give him a chance but please give me and my brother one.
I beg you let my father stay and be with my family.” (sic) (G18, p 145)

22. A letter dated 3 September 2011 from the applicant’s 11-year-old son states as follows:

“ My name is ... I am 11 years old. I am writing to you about my dad Patrick McVey. I love my dad and he has been a good dad to me and my bro ... . He is a good man, he has just made some wrong choices. I need my dad to be there for my teenage years, And there to see me do sport. I need him there for school and growing up. Please do not let my dad get deported as I miss him a lot. I know my dad has had chances but me and my bro ... believe that he has changed and he wants a chance to be my dad.” (G18, p 144)

ADDITIONAL MATERIAL RELIED ON BY THE APPLICANT

23. A letter from an officer at Hakea Prison, dated 16 December 2010, states as follows:

“Mr McVey has attended the following substance use groups at Hakea Prison:
14/10/10 Thinking Distortions
Participants discussed common thinking distortions or errors in thinking and using worksheets identified those that they regularly used with examples.
21/10/10 Communication
Participants looked at developing effective communication skills within different relationships and how to assert themselves in difficult situations.
28/10/10 Problem Solving
Participants learnt the steps to problem solving using a brain storming technique.
04/11/10 Goal Setting
Participants learned the importance of setting goals and how to set goals using SMART.
11/11/10 Managing Anger
Participants discussed some anger myths and different types of destructive anger. Triggers to anger and what strategies could be used to manage anger are explored.
18/11/10 Relapse Prevention
Looks at how the 3D’s (Delay, Distract, Decide) can be used in changing behaviour. Participants noted who their support is and what their plans are to prevent relapse.
25/11/10 Stages of Change
Participants learnt Prochaska & Di Clemente’s Stages of Change Theory and identified which stage they were currently at in relation to their drug use.
09/12/2010 Lifestyle Balance
Participants worked through the ‘Miracle Question’ (Brief Solution Focused Therapy) and looked at the importance of lifestyle balance with the use drugs (sic) or alcohol.
16/12/10 Self Esteem
Participants looked at ways of improving their self esteem and why self esteem is important in maintaining a healthy lifestyle.
During each of these sessions Mr Mcvey has been punctual and he has actively participated in all activities.” (G17, p 141)

24. The G Documents also include documentation evidencing the applicant’s completion of the following courses during his present period of incarceration:
    • Certificate I in Engineering (Perform Routine Gas Metal Arc Welding) (2010);
    • Certificate II in Engineering (Interpret Technical Drawing) (2011);
    • Brief Intervention Cognitive Skills Program (24 February 2011);
    • Course in Pre-Training Indicator (Pre-Training Indicator for Literacy, Numeracy and Career Preferences) (13 May 2011). (G17, pp 139-140, 142-143).

ANALYSIS

Application of the “character test”

25. By reason of the fact that the applicant has been sentenced to the various terms of imprisonment set out in paragraphs 3 and 4 above, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
26. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

Should the discretionary power to cancel the visa be exercised in this case?

27. Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:

“ (1) ... decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2) Decision-makers should only take into account directly relevant considerations.
...”
THE PRIMARY CONSIDERATIONS

28. Paragraph 10 of Direction [41] sets out the primary considerations 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).”
Protection of the Australian community

29. Paragraph 10.1 of Direction [41] states:

“ 10.1 Protection of the Australian community

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

30. The objectives set out in Part 1, para 5 of Direction [41] are as follows:

“ 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 the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

31. Paragraph 10.1.1(1) of Direction [41] states:

“ 10.1.1 The seriousness and nature of the conduct

(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.”

Paragraph 10.1.1(2) lists (in subparas (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“(c) rape and any other sexually-based offences;”.
(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;”.

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“ (3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including

(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.

(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
...”

32. The applicant’s record of offending commenced in 1975 and continued consistently until August 2010 when the offences of which he was convicted in 2011 (resulting in his present incarceration) were committed. His more serious offending, resulting in the imposition of custodial sentences, commenced in 1987 and he thereafter committed offences, for which he received custodial sentences, in 1991, 1992, 1994, 2003, 2005, 2008, 2009, and 2010. His most serious offences were the offences of sexual penetration without consent which he committed in 1994 and the drug-related offences which he committed in 2005 and 2010, the seriousness of which is described in the remarks of the various sentencing judges set out in paragraphs 13-15 above.
33. Having regard to:
    • the very high total number (approximately 133) of offences and the serious nature of some of those offences;
    • the extensive period (35 years) over which those offences were committed and the short periods between offences throughout that period; and
    • the fact that the most recent offences were committed in August 2010 and that the applicant has been, and remains, in custody since the commission of those offences;

there can be no question that the applicant’s criminal record should be regarded as a matter of serious concern as regards the welfare and safety of the Australian community, all the more so because it includes some very serious offences of a kind which involve violence and drug-related harm to the community ─ that is, the kind of harm which the Government (as reflected in Direction [41]) is especially concerned that the Australian community should be protected from.

The risk that the conduct may be repeated

34. Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2 The risk that the conduct may be repeated
(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.”

35. The applicant’s criminal history indicates that he has committed offences in nearly every year from 1975 to 2010 and that he has been convicted of approximately 133 offences in that period. In more recent years, he has been convicted of various serious drug-related offences in 2005 and 2011 for which he received substantial custodial sentences.
36. In the course of his criminal history, furthermore, the applicant has been convicted of breach of bail on three occasions (in 1991 (twice) and 1993) and breach of an Intensive Supervision Order in 2005. As Crisford DCJ noted when sentencing the applicant for serious drug-related offences in December 2005 (see paragraph 14 above), the applicant was on bail for an earlier drug offence, and was also subject to an Intensive Supervision Order, at the time he committed the offence of possessing methylamphetamine with intent to sell and supply on 15 August 2005. The Tribunal also notes Scott J’s remarks, when sentencing the applicant in May 1994 for the offences of sexual penetration without consent (see paragraph 13 above), that the applicant committed those offences only four days after his release from prison on 28 March 1993 following his conviction of offences of stealing and threatening to kill or injure in November 1992, and while he was on parole for the latter offences.

37. The Tribunal notes, furthermore, that:
    • Yeats DCJ referred, in her sentencing remarks of 29 March 2011 (see paragraph 15 above), to a statement in a pre-sentence psychological report that the applicant’s “prognosis for change is poor”;
    • on 31 August 2011 the Prisoners Review Board decided to deny release on parole to the applicant by reason of:

“ risk to the safety of the community and high risk of re-offending due to:
1. Serious nature of current offences involving drug related offending.

2. Extensive criminal history over a 35 year period including violence, drugs, firearms and sexual penetration without consent.

...”

38. As regards rehabilitation, the Tribunal notes the applicant’s evidence that he has attended various rehabilitation courses and programs in prison in the past but that they “did not sink in” and he continued to offend, but that the Narcotics Anonymous meetings and the “Pathways” program (an intensive substance abuse and criminal conduct treatment program) which he is presently attending “are sinking in” and that he is now taking his rehabilitation seriously. The Tribunal also notes his evidence regarding the bad health experience he had when committing his most recent offence of attempting to manufacture methylamphetamine in August 2010 and his realisation that if he continues to offend he will lose his family and any prospect of a useful and productive future.
39. The Tribunal is prepared to accept that the applicant’s expression of his desire and intention not to re-offend is sincere and that he is presently participating constructively in the “Pathways” program. The Tribunal notes, however, that he only commenced that program in late November 2011 (and he is not due to complete it until late February 2012) and, by his own acknowledgement in his evidence, he still has “heaps to learn”. Although the applicant, in giving his evidence, appeared to the Tribunal to have a genuine commitment to rehabilitate himself, the Tribunal can go no further than to accept that his present journey towards rehabilitation has only recently commenced. That journey is, in the Tribunal’s opinion, likely to be a long and difficult one and the Tribunal cannot presently be sure or, given the applicant’s criminal history, even optimistic that he will successfully complete that journey.
40. Having regard to the considerations referred to in paragraphs 35 – 39 above, the Tribunal can only conclude that, at the present time, there is at least a substantial risk that the applicant will commit serious drug-related offences in the future or otherwise re-offend in a serious manner.

Conclusion regarding protection of the Australian community

41. Having regard to the Government’s objectives referred to in para 5.1 of Direction [41], the applicant’s extensive criminal history including, in particular, the serious offences of sexual penetration without consent for which he was sentenced on 30 May 1994 and the serious drug-related offences for which he was sentenced on 9 December 2005 and 29 March 2011, and the Tribunal’s assessment that there is presently at least a substantial risk that he will re-offend in a serious manner, the Tribunal concludes that this “primary consideration” weighs heavily in favour of cancellation of the visa.

Whether the person was a minor when they began living in Australia

42. Paragraph 10.2 of Direction [41] states:

“ 10.2 Whether the person was a minor when they began living in Australia
(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”

By para 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.

43. The applicant was seven years old when he first arrived and began living in Australia on 28 March 1969. The applicant was, therefore, a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
44. It is common ground that the applicant has remained in Australia from 28 March 1969, with the exception of the period 20 September – 1 October 1999.
45. The phrase “formative years” is not defined in Direction [41] but the Tribunal, having regard to the common understanding of that phrase, is satisfied that the applicant spent most of his formative years in Australia. The applicant, furthermore, commenced to engage in criminal conduct in 1975 during his formative years.
46. In accordance with para 10.2 of Direction [41], this “primary consideration” weighs in favour of the applicant.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity

47. Paragraph 10.3(1) of Direction [41] states:

“ 10.3 The length of time that a person has been ordinarily resident
(1) 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.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

48. The applicant has been ordinarily resident in Australia from 28 March 1969 and his first criminal conviction occurred on 9 April 1976 in respect of an offence which, the Tribunal understands, was committed in 1975 (see G10, p 94). His next conviction occurred on 23 November 1979 and he thereafter engaged in criminal activity on almost an annual basis.
49. Given that the applicant was ordinarily resident in Australia for a period of approximately seven years before he commenced to engage in criminal activity, this “primary consideration”, in accordance with para 10.3 of Direction [41], weighs in the applicant’s favour. In the Tribunal’s opinion, however, it does not so weigh to a significant degree.

Relevant international obligations

50. Paragraph 10(1)(d) of Direction [41] refers to:

“ 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).”

51. The only relevant international obligation in this case is the obligation to have regard to “the best interests of the child”.
52. Direction [41] relevantly states:

“ 10.4 International obligations
(1) Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
...
10.4.1 The best interests of the child
(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
...
(4) Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”

53. It is common ground that the applicant has two children under 18 years of age, namely, a son aged 13 years and a son aged 11 years. Accordingly, pursuant to paras 10(1)(d)(i), 10.4(1) and 10.4.1(1) of Direction [41], the best interests of each of those two children is a “primary consideration” in this case.
54. There is no evidence before the Tribunal, and the respondent does not contend, that either of the factors referred to in subparas (a) and (b) of para 10.4.1(4) of Direction [41] is applicable in this case.
55. Paragraph 10.4.1(5) of Direction [41] lists the factors which “are to be considered” in considering the best interests of the child. As regards those factors which are applicable in the circumstances of this case, the Tribunal comments as follows.

The nature and duration of the relationship between the child and the person

56. The children have always lived with their mother (the applicant’s ex-wife). The Tribunal understands that the applicant has not played a full, or even a substantial, parental role for much of the children’s lives. Indeed, he has been incarcerated for a large part of their lives. The Tribunal accepts, however, that the applicant loves and cares deeply about the children. The Tribunal notes his evidence that he has been receiving monthly visits from the children and their mother at Karnet Prison Farm.

Any Court orders relating to parental access and care arrangements

57. There is no evidence before the Tribunal that any such orders have been sought or made.

The extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday

58. The Tribunal notes the applicant’s evidence that his ex-wife is now in poor health and needs him to help her care for the children, and it accepts that, if he is allowed to remain in Australia, he is likely to play a greater parental role in the future than he has in the past. The Tribunal, however, is not prepared to go so far as to accept that the applicant is likely to play a full parental role up to the eighteenth birthday of each child.

The child’s age, citizenship and time spent in Australia

59. The relevant children are aged 13 years and 11 years, are Australian citizens, and have spent the whole of their lives in Australia.

The existence of other persons who already fulfil a parental role in relation to the child

60. The Tribunal is not aware of any person, other than the children’s mother, who already fulfils a parental role in relation to the children.

Any known wishes expressed by the child

61. In the letters set out in paragraphs 21 and 22 above, the children have expressed the wish that the applicant remain in Australia so that he can be there for them as they grow up and so that he can continue to be in their lives.

The impact of the person’s prior conduct and whether that conduct has had a negative or positive impact on the child

62. In their abovementioned letters the children refer to the applicant in positive terms. The applicant himself denied that he had been a bad role model or a negative influence on the children. It is clear from the children’s letters, however, that they are generally aware of (at least) his recent criminal conduct ─ indeed, they have been visiting him in prison ─ and, in the Tribunal’s opinion, the applicant cannot reasonably claim to have been a good role model for them. The Tribunal is unable to determine whether the applicant’s criminal conduct has otherwise had a negative impact on the children.

Whether the child is likely to accompany the person overseas in the event the person is removed from Australia

63. The Tribunal understands that neither of the children will accompany the applicant in the event that he is removed from Australia. Accordingly, issues such as living standards, and any language or cultural barriers, in the relevant overseas country do not arise for consideration in this case.

The likely effect that any separation from the person would have on the child

64. The Tribunal accepts that, if the applicant were removed from Australia, the children would be distressed and disappointed at the loss of physical contact with him during their adolescent years. The applicant has, however, been incarcerated for a substantial part of the children’s lives and they have, accordingly, had little, if any, physical contact with him for a substantial part of their lives. The Tribunal notes that, in the event of the applicant’s removal from Australia, he and the children would be able to keep in contact by various means of instant communication including email, telephone and “skype”. In these circumstances the Tribunal is not satisfied that the applicant’s removal from Australia would be likely to have a significantly adverse effect on the children.

Conclusion regarding international obligations

65. Having regard to the factors discussed in paragraphs 56 – 64 above, the Tribunal accepts that it would be in the best interests of applicant’s children if he remained in Australia. The Tribunal, however, does not attach substantial weight to this matter in the circumstances of the present case, having regard, in particular, to the following considerations.
    • the lack of a substantial parental relationship between the applicant and the children to date;
    • the unlikelihood that the applicant’s removal from Australia would have a significantly adverse effect on the children.
66. The Tribunal concludes, therefore, that this “primary consideration” weighs against cancellation of the visa, but not to a significant degree.

OTHER CONSIDERATIONS

67. Paragraph 11 of Direction [41] states:

“11. Other considerations
Note: These are not primary considerations.
(1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(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.
...”

Paragraph 11(3) sets out an inclusive list of “other considerations”. The Tribunal comments on each of those “other considerations” as follows.

Family ties, the nature and extent of any relationships

68. As previously mentioned, the applicant, who is presently 50 years of age, has lived in Australia since he arrived here in March 1969 when he was seven years old. Not surprisingly, he considers himself to be an Australian. His surviving parent (his mother), his three siblings and his four children live in Australia. He has previously had two marital relationships, each of which produced two children, but, as far as the Tribunal is aware, he is not presently in a marital relationship.
69. The applicant clearly has substantial and longstanding family ties to Australia which will be broken by his removal from Australia. He is, however, not a member of a family unit (comprising himself, a partner and children) which would be disrupted by his removal from Australia.

The person’s age, health

70. The applicant has not raised any age or health issues for the Tribunal’s consideration.

Links to the country to which the person would be removed

71. The applicant has not returned to, or visited, the UK since he departed in 1969. According to his evidence, he has some elderly uncles and aunts living in Scotland, but he has not kept in touch with them.
72. The Tribunal accepts that the applicant does not presently have any significant links to the UK or to Scotland in particular.

Hardship likely to be experienced by the person or their immediate family members

lawfully resident in Australia

73. The Tribunal accepts that the applicant would be likely to experience substantial emotional distress and hardship if he were removed from Australia, given that he has lived in Australia exclusively for the past 42 years and regards Australia as his home and all the members of his immediate family live in Australia. The Tribunal accepts that the applicant’s physical separation from his two minor children would cause him great emotional distress.
74. On the other hand, such hardship as the applicant may suffer will have been the product of his own failure to heed a formal warning by the Department in June 2007 (see paragraph 78 below) and his subsequent commission of serious criminal offences. The Tribunal notes, furthermore, that the applicant would not be likely to experience any significant cultural difficulties in the UK and that it is likely that he would be able to re-establish links with Scotland in particular. The Tribunal also notes, in this connection, that the applicant would be able to re-establish contact with his elderly relatives in Scotland (whom one of his brothers recently visited) and that they would presumably offer him some support.
75. The applicant’s immediate family members lawfully resident in Australia comprise, for the purposes of this consideration, his mother, his three siblings and his two adult children (the best interests of his two minor children have been considered above as a “primary consideration”). A letter of support from the applicant’s mother, in which she refers to the distress and hardship she would suffer if the applicant were removed from Australia, is in evidence (see paragraph 20 above). The Tribunal notes that, since she wrote that letter, her husband (the applicant’s father) has passed away. The Tribunal also notes that, if the applicant is removed from Australia, his mother will still be able to rely on her other children (the applicant’s sister and two brothers), who also live in Perth, for support. Although no letters of support from any other members of the applicant’s immediate family are in evidence, the Tribunal is prepared to assume that they too would be upset and disappointed by the removal of their father and brother from Australia. The Tribunal also notes that no letter of support from either of the applicant’s ex-partners (the mothers of his children) is in evidence.

Level of education

76. The applicant was educated in Australia up to secondary school level (Year 10) (G17, p133). Although he was not legally or otherwise represented at the hearing before the Tribunal, he was, in the Tribunal’s opinion, able to represent himself in an articulate and intelligent manner. The Tribunal is satisfied that he presented his case as effectively as its merits allowed.
77. According to the applicant’s own evidence, he has previously worked as a labourer but has since acquired a “bobcat ticket” and welding skills. The Tribunal accepts that these additional skills and qualifications would increase his capacity to find employment in Australia. The Tribunal also notes, however, that these skills are transferable and would likewise increase his capacity to find employment in the UK.

Whether the person has been formally advised in the past by an officer of the

Department about conduct that brought the person within the character (visa refusal

and cancellation) provisions of the Act

78. By letter dated 18 June 2007 an officer of the Department wrote to the applicant as follows:

“ ...
You were informed by notices dated 5 September 2006 and 18 October 2006 that the Minister for Immigration and Citizenship (the Minister) intended to examine whether there were grounds to cancel your Resident Return BB 155 visa, under subsection 501(2) of the Migration Act 1958 (the Act).
You responded to the notice by correspondence received from you on 9 October 2006.
On this occasion, the Minister has exercised his discretion and decided not to cancel your visa under subsection 501(2) of the Act.
However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of your visa may be considered again. Consideration may also be given to refusing any future visa applications. Please note that disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the Act is attached for your information.
...” (original emphasis) (G11)

The applicant acknowledged that he had received that warning from the Department but that he did not take it seriously enough and he subsequently committed further offences.

OVERALL ASSESSMENT OF THE PRIMARY CONSIDERATIONS AND THE OTHER RELEVANT CONSIDERATIONS

79. Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
80. As regards the primary considerations, in the Tribunal’s opinion the protection of the Australian community weighs heavily in favour of cancellation of the visa, but each of the other primary considerations weighs against cancellation of the visa.
81. As regards the other considerations referred to in paragraphs 68-78 above, in the Tribunal’s opinion most of those considerations weigh against cancellation of the visa, namely, those considerations discussed in paragraphs 68-69, 71-75, 77, but one of those considerations, namely the Department’s previous warning to the applicant and the applicant’s subsequent commission of further serious offences (see paragraph 78 above), weighs in favour of cancellation of the visa to a significant degree.
82. In the Tribunal’s opinion, the consideration which should be given the greatest weight in the circumstances of this case is the protection of the Australian community. The Tribunal has formed this opinion having regard, in particular, to:
    • the Government’s objective in seeking to protect the Australian community from unacceptable risks of harm as a result of criminal activity by non-citizens (see para 5.1(2) of Direction [41]);
    • the applicant’s extensive criminal history, including, in particular, the serious sexual offences of which he was convicted in May 1994 and the serious drug-related offences of which he was convicted in December 2005 and March 2011;
    • its assessment that there is at least a substantial risk that the applicant will commit serious drug-related offences in the future or otherwise re-offend in a serious manner; and
    • its opinion that that risk of the applicant’s re-offending and thereby causing serious harm to the Australian community is a risk which the Australian community would regard as unacceptable, notwithstanding that the applicant (who is now 50 years old) has spent most of his life in Australia, having lived in Australia since he was seven years old.
83. In the Tribunal’s opinion, none of the other primary considerations (all of which weigh against cancellation of the visa) weighs against cancellation of the visa to a significant degree, and those primary considerations are, in the Tribunal’s assessment, collectively outweighed by the primary consideration regarding the protection of the Australian community which weighs heavily in favour of cancellation of the visa.
84. Likewise, the other considerations discussed in paragraphs 68-69, 71-75, 77 above, being considerations which “generally... should be given less weight than that given to primary considerations” (see para 11(2) of Direction [41]), are, in the Tribunal’s assessment, collectively deserving of substantially less weight than that which the Tribunal attaches to the protection of the Australian community. Furthermore, the Tribunal attaches significant weight to the consideration referred to in paragraph 78 above which, like the protection of the Australian community, weighs in favour of cancellation of the visa.
85. The overall assessment of the Tribunal is that, in the circumstances of this case, the protection of the Australian community, and the consideration regarding the Department’s formal warning to the applicant and his subsequent commission of further serious offences, which favour cancellation of the visa, outweigh the collective weight of the other primary considerations, and the other relevant considerations, which favour non-cancellation of the visa.

CONCLUSION

86. The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa.
87. In the Tribunal’s opinion, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.

DECISION

88. For the above reasons, the Tribunal affirms the decision under review.

I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ....(sgd)T Freeman......................

Associate

Date of Hearing 13 December 2011

Date of Decision 5 January 2012

Representative of the Applicant Self-Represented

Representative of the Respondent Mr A Gerrard

Solicitor for the Respondent Australian Government Solicitor