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Moeys and Minister for Immigration and Multicultural Affairs [2006] AATA 869 (10 October 2006)

Last Updated: 12 October 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL № V2006/673

GENERAL ADMINISTRATIVE DIVISION

Re: PETER MOEYS

Applicant

And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal: Mr Egon Fice, Member

Date: 10 October 2006
Place: Melbourne
Decision: The Tribunal sets aside the decision under review and decides that the applicant’s visa should not be cancelled. The applicant should be warned that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences.

(sgd) Egon Fice
Member

MIGRATION – cancellation of Transitional (Permanent) Visa – removal from Australia – character test – substantial criminal record – heroin addict - seriousness and nature of conduct – risk of recidivism – deterrence – expectation of Australian community – long term resident – power to deport – repugnance – co-extensive provisions

Migration Act 1958 ss200, 201, 499, 501

Ministerial Direction Ndeg. 21, 23 August 2001

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Anthony Hordern and Sons v Amalgamated Clothing and Allied Trade Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400

Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 178

Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121; (2005) 143 FCR 420

Moran v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 242; (2006) 151 FCR 1

Minister for Immigration, Multicultural and Indigineous Affairs v Nystrom [2006] HCATrans 197 (12 April 2006)

REASONS FOR DECISION

10 October 2006 Mr Egon Fice, Member

1. Mr Moeys, a Dutch citizen who is lawfully in Australia having been granted a Transitional (Permanent) Visa (visa), was notified by the Department of Immigration and Multicultural Affairs (DIMA) by letter dated 19 July 2006 that a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Delegate) had exercised his discretion to cancel Mr Moeys’ visa under s 501(2) of the Migration Act 1958 (the Act). The ground for cancellation is that Mr Moeys does not pass the character test set out in s 501(6)(a) because he has a substantial criminal record as defined in s 501(7) of the Act.
2. There are two issues for the Tribunal to consider: The first is whether, having regard to all of the relevant considerations in Ministerial Direction Ndeg. 21 dated 23 August 2001 (the Ministerial Direction), the preferable decision is to cancel Mr Moeys visa (the discretion issue); and secondly, whether the Delegate’s decision to cancel Mr Moeys visa under s 501 of the Act was beyond the Delegate’s power having regard to the deportation provisions in s 201 (the power issue). I have considered the discretion issue on the assumption that the exercise of the power to cancel Mr Moeys’ visa by the Minister’s Delegate was valid. The issues raised by the applicant in respect of the power issue were recently the subject of argument before the High Court of Australia (Minister for Immigration, Multicultural and Indigineous Affairs v Nystrom [2006] HCATrans 197 (12 April 2006)) but the High Court is yet to hand down its decision.

RELEVANT FACTS

3. Mr Moeys was born on 18 January 1976. He immigrated to Australia with his parents and sister, arriving on 9 July 1979. He was three and a half years old at that time. Although Mr Moeys left Australia on three occasions between 1986 and 1992 on holidays, he has resided permanently in Australia since his arrival. On 1 September 1994, by reason of the Migration Legislation Amendment Act 1994, Mr Moeys was deemed to be the holder of a Transitional (Permanent) Visa.
4. Mr Moeys attended James Cook and Southern Cross primary schools followed by secondary school at Eummemerring. He also studied briefly at the Noble Park TAFE. He commenced his Victorian Certificate of Education (VCE) in 1992 and although he did not complete the certificate, he passed the majority of required subjects.
5. Mr Moeys worked at a Kentucky Fried Chicken outlet (KFC) on a part-time basis while in his final year of schooling. That work continued to about 1995 by which time he was a shift supervisor at KFC Dandenong. He had also worked as trainee storemen with a picture framing company, Successories, in 1995/1996. He had a number of short-term jobs after registering with an employment agency. Mr Moeys obtained work with an automotive repair garage called Supaspray at Dandenong as a trade assistant between 1997 and 1998. The work involved the repair of motor vehicle bodies and spray painting. Mr Moeys was also employed as a trade assistant between 2000 and 2001 with a company called Newsweep Fleet Management, where he worked on mechanical and electrical repairs to the truck fleet operated by that company. He also prepared truck bodies for painting. Mr Moeys worked in a number of other factory jobs after leaving this company.
6. By about 1992 or 1993, Mr Moeys began smoking marijuana and he used heroin occasionally. By about 1995 or 1996, Mr Moeys’ occasional heroin use became a full-blown addiction.
7. On 27 May 1994 Mr Moeys was convicted of an affray and he received a sentence of nine months. He was detained for the first two months in a youth training centre at Parkville and then he was required to serve weekend detention.
8. On 14 October 1997 Mr Moeys was convicted in the Dandenong Magistrates Court of theft of a motor vehicle, failure to answer bail, use of heroin and attempting to commit an indictable offence. He received a suspended sentence and was placed under a community based order for 18 months.
9. On 5 March 1999 Mr Moeys was convicted of theft from a shop, possession of heroin, use of heroin, theft of a motor vehicle, attempting to commit an indictable offence and failure to answer bail. He was sentenced in the Dandenong Magistrates Court to a 24-month community based order and was required to undergo assessment and treatment for alcohol/drug addiction.
10. Mr Moeys’ father suffered a stroke in May 2000 and died in September 2000.
11. Between 29 March 2001 and 11 April 2001 Mr Moeys committed six counts of theft, five counts of robbery and one count of possession of a drug of dependence. He was released on bail in July 2001 pending trial. On 23 May 2002 he pleaded guilty to the crimes committed between 29 March and 11 April 2001 and he was sentenced in the Melbourne Country Court to 21 months imprisonment with a non-parole period of 12 months.
12. Between 16 October 2001 and 26 October 2001 Mr Moeys committed 19 counts of theft, including the theft of four motor vehicles and $12,390.00 in cash. These offences were committed while he was on bail for the earlier offences. He pleaded guilty to these later offences and on 28 June 2002, he was sentenced in the Melbourne County Court to 13 months imprisonment with a single non-parole period of 18 months.
13. On 2 July 2002 Mr Moeys was convicted of theft from a shop, possessing heroin, use of heroin, attempted possession of heroin and failure to answer bail. He was convicted and fined $250.00.
14. On 8 January 2003 Mr Moeys was convicted of robbery and intentionally causing injury; for which he was sentenced in the Melbourne Magistrates Court to a further two months imprisonment.
15. By letter dated 12 February 2003 the DIMA gave Mr Moeys notice of its intention to consider cancelling his visa under s 501(2) of the Act. Mr Moeys acknowledged receipt of that letter on 18 February 2003.
16. In April 2003 Mr Moeys was released on parole.
17. Between 5 September 2003 and 2 February 2004, Mr Moeys committed five counts of robbery, 49 counts of theft, 4 counts of attempted theft, and 1 count of making a threat to inflict serious injury. He was arrested on 3 February 2004 and remanded in custody. He pleaded guilty to all charges and on 4 November 2005 he was convicted in the Melbourne Country Court and sentenced to 3years and 10 months imprisonment with a non-parole period of 2 years and 6 months. He is currently in prison serving that sentence.
18. While in prison, since 16 February 2004, Mr Moeys’ has had seven incidents recorded against him. They are as follows:

11/03/04 - Good order not notified – abuse staff and fail to comply- Governor’s Hearing – Proven.
11/04/04 - Assault staff – Governor’s Hearing – Dismissed.
01/07/04 – Good order not notify – Possess weapon – Governor’s Hearing – Proven.
29/09/05 – Good order not notify – Possess weapon – Governor’s Hearing – Proven.
29/09/95 – Good order not notify – failed to comply – Governor’s Hearing – Proven.
29/11/05 – Assault prisoner – Under investigation.
18/05/06 – Unauthorised smoking – No outcome recorded.

19. His grandparents having died some years ago, Mr Moeys has no other relatives in Holland. Although Mr Moeys has a very rudimentary understanding of the Dutch language, he cannot read or write in Dutch.

THE LEGISLATIVE SCHEME

20. On 18 January 2006 Mr Moeys received a notice from the DIMA. It stated that consideration was being given to cancelling his visa under s 501(2) of the Act because he might not pass the character test set out in s 501(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.

21. Section 501(6) of the Act provides that a person does not pass the character test if, amongst other things, the person has a substantial criminal record. That term is defined in s 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more, the person has a substantial criminal record.
22. The Delegate informed Mr Moeys by letter dated 19 July 2006 that, after taking into account his submissions following the notice given on 18 January 2006, the Delegate had decided to cancel his visa on the ground that he did not pass the character test due to his substantial criminal record.
23. Mr Moeys does not dispute that the Delegate’s power to cancel his visa was enlivened because he failed to pass the character test and he accepts that he has a substantial criminal record as defined in s 501(7) of the Act. However, Mr Moeys contended that the Delegate ought not to have exercised his discretion to cancel Mr Moeys visa given his particular circumstances.
24. Section 499(1) of the Act provides that the Minister may give written directions to person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Further, a person or body must comply with a direction made by the Minister under s 499(1). The relevant directions made by the Minister on 23 August 2001 are set out in Direction Ndeg. 21 and the Ministerial Direction makes it clear that it must be followed by the Tribunal. Broadly, the Ministerial Direction states that the exercise of the discretion under s 501 of the Act must take into account a wide range of factors including the expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations. As is stated in the Ministerial Direction, the purpose of refusing or cancelling a visa under s 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community.
25. Although the Ministerial Direction sets out three primary considerations, which are regarded as most important, there are other considerations which also should be taken into account but given less weight in balancing all relevant considerations. The primary considerations when making a decision to cancel a visa are:

(a) the protection of the Australian community and members of the community;
(b) the expectations of the Australian community and
(c) in all cases involving a parental or other close relationship between the child or children and the person under consideration, the best interests of the child or children.

26. The Ministerial Direction deals with each primary consideration in turn. Consideration of the first primary factor requires me to assess the level of risk to the community were Mr Moeys to remain in Australia. The relevant matters which I must consider are:

(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent similar conduct (general deterrence).

SERIOUSNESS AND NATURE OF CONDUCT

27. As to the seriousness and nature of the conduct, the Ministerial Direction sets out examples of offences which are considered by the government to be very serious. Among those examples is the use of violence or making threats of violence. As is apparent from Mr Moeys’ criminal record, other than the affray in which he was involved in 1994, all his other offences are directly related to his heroin addiction. They involved theft and robbery from retail outlets by forcibly taking the contents of cash registers. In the course of committing the robberies Mr Moeys also committed one count of intentionally causing injury on which he convicted and he received a further two month term of imprisonment in January 2003. The details and circumstances surrounding that conviction were not given in evidence. Also, included amongst the convictions of 4 November 2005 is one count of making a threat to inflict serious injury. On that count, in the summary of the prosecution opening address, it is stated that after Mr Moeys took $600.00 from the till at a Baker’s Delight bakery, a male staff member grabbed him to prevent him getting away. Mr Moeys managed to get away and ran out of the shop with the male staff member in pursuit who tackled him outside the shop. A struggle developed and Mr Moeys said let me go or I will stab you. There is no evidence that Mr Moeys had a weapon and he was never charged with armed robbery.
28. In her sentencing remarks, when referring to the five robberies of which he was convicted, Pannam J said:

...On one instance you said you would shoot the person and on another that you had a syringe.

29. In his evidence to the Tribunal Mr Moeys said that he did not make those threats and, because he pleaded guilty to all counts, the matters were never tested in the course of a trial. Mr Moeys said that he had discussed this with his solicitor at the time he pleaded guilty, but he was advised that in the interests of not proceeding to trial, no argument should be raised about whether or not threats had been made. However, Mr M. Brereton, a solicitor with the Australian Government Solicitor who appeared on behalf of the Minister, submitted that what is stated in the sentencing remarks is conclusive and the Tribunal cannot go behind that. My attention was drawn to the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234. Although that was a decision dealing with deportation under s 201 of the Act, the principle is relevant for these purposes. The court said, at page 244:

But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning the sentence and upon which the sentence is based must be accepted by the Tribunal.
And further, at page 245:
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent.

30. Therefore, despite Mr Moeys’ protestations about whether or not he made the threats as stated in Judge Pannam’s sentencing remarks, I cannot, and do not, take into consideration Mr Moeys’ evidence about whether or not the stated threats were made. This is despite the fact that he pleaded guilty to these offences and they were never tested before the court. Having consented to plead guilty to the charges as framed, Mr Moeys cannot now resile from that position.
31. However, I do accept Mr Moeys’ evidence regarding the absence of weapons. I have no doubt that he would have been charged with armed robbery had he carried a weapon at any stage.
32. It is also the government’s view (paragraph 2.7 of the Ministerial Direction) that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. Mr Brereton pointed to the fact that the seriousness of Mr Moeys’ offences may also be inferred from the fact that the convictions for the offences committed in 2001 and 2003/2004 were made in the County Court rather than the Magistrates Court. However, Mr C. McLennan, a solicitor who acted for Mr Moeys in respect of those offences and who gave evidence before the Tribunal, said that generally Mr Moeys selected soft targets and was not aggressive or violent towards those persons. The robberies were essentially in the nature of shop thefts where the shop attendant was distracted and opened the till after which Mr Moeys or his accomplices snatched money from the till while telling the attendant to stand back. Although Mr Brereton contended that Mr Moeys targeted young women, possibly because of their vulnerability, I accept that Mr Moeys essentially sought soft targets because there was less likelihood of confrontation. Mr McLennan also pointed out that although he had no doubt that the shop attendants confronted by Mr Moeys suffered from some mental apprehension, there was only one victim impact statement produced to the court. This is consistent with Mr Moeys’ statement that he never intended to cause any harm to any person in the course of committing his robberies. Mr Moeys also said that he was driven to commit the crimes by his heroin addiction and the need to find money to pay for that addiction. That accords with the remarks made by the two sentencing Judges. In his sentencing remarks of 23 May 2002, Stott J said, at page 20:

...
The level of violence in the robberies was low with minimal physical injuries sustained by only a few of the victims. No weapons were involved.

That statement was made in respect of all four of the defendants dealt with by his Honour and there is no evidence in his sentencing remarks that Mr Moeys was involved in any violence. He continued:

Whilst each individual robbery may be considered at the lower end of the scale of seriousness for this type of offence, the total number of all offences and their concentration into a relatively short period creates a serious picture of persistent criminal activity...

At page 21 Stott J said:

...
At the time of the current offences each of you was a heroin addict and the offences were committed to obtain funds for your addiction...

His Honour continued that all of the defendants entered pleas of guilty at the earliest opportunity and he took that into account when pronouncing sentence. In referring specifically to Mr Moeys’ offences, he said:

Most of your offending was two weeks and most of the robberies you were involved in did not involve more active participation on your part than your presence and making remarks to the victims...

His Honour also noted that Mr Moeys made admissions when interviewed by the police. The fact that Mr Moeys’ offences, and in particular the robberies, were at the lower end of seriousness for that type of offence is indicated by the fact that Stott J imposed a nine month imprisonment sentence on each of the robbery counts.

33. In his sentencing remarks of 28 June 2002, Stott J, while again noting that the offences where committed to obtain funds for his heroin addiction, said that Mr Moeys had made admissions to police and that his record of interview indicated that he had expressed contrition and remorse when making the admissions concerning his offending behaviour.
34. After Mr Moeys was released on parole on 28 April 2003, although he did not commit any crimes for a period of four months, after reverting to heroin use, he began committing crimes similar to those he committed in 2001. Once again, those crimes were committed to fund his heroin addiction. When arrested he again pleaded guilty to all counts; there being 5 counts of robbery, 49 counts of theft, 4 counts of attempted theft and 1 count of making a threat to inflict serious injury. In her sentencing remarks, Pannam J said, at page 4:

As you know, I have sought and received a pre-sentence report in this matter. The author of that report Mr Ian Joblin, expressed concern about your addiction to heroin and that on previous occasions on release from prison there were no procedures put in place to assist you in transition into becoming a law abiding member of the community. However, the circumstances in your life at this time are somewhat different in that you have an ongoing relationship with a young woman with whom you can live upon your release upon parole.

35. According to Mr Moeys, he was confident that, upon his release on parole in 2003, he would not go back to using heroin. He had a job arranged but unfortunately that fell through. He was not required to undertake any rehabilitation programs upon his release. After release, he lived for some two weeks in a motel, and then he moved to a boarding house followed by a unit in Dandenong. At the boarding house, he was surrounded by persons who where using drugs. Although Mr Moeys sought assistance from his parole officer, explaining that he was not coping, she indicated to him that she could not assist him. Mr Moeys found himself isolated and depressed and with no one that he could seek assistance from. His girlfriend of many years, Ms L. Kovacevic, who lived with Mr Moeys prior to his first conviction, had also been a heroin addict and was trying desperately to remain clean. She therefore refused to renew her contact with Mr Moeys at that time. His mother was living in Devonport, Tasmania and his father had since died.
36. Mr I. Joblin, a forensic psychologist with some 29 years experience in that field, provided Pannam J with a pre-sentencing report in October 2005. He reported that although Mr Moeys had previously attempted to rid himself of his drug habit by undertaking a rapid detoxification program in Brighton, and another detoxification program in Dandenong, he had not been successful. Mr Joblin said:

Predictably these programs were of no lasting success because on his report there was no follow-up.

Although Mr Moeys had no history of drug use while in jail, having tested negative to all drug tests conducted during his incarceration, and he was motivated to stay out of trouble, the lack of support in the community and the conditions in which he was living, according to Mr Joblin, made it predictable that he would return to drug use. Mr Joblin said he was seriously concerned about Mr Moeys’ release from Barwon Prison in April 2003. He stated that, ideally, Mr Moeys would require in-patient rehabilitation or supervision such as might be available through the Parole Board and that he should not be left to his own resources after release from prison. In fact, Mr Joblin insisted that upon release, ongoing rehabilitation should be made coercive by the Parole Board if a heroin addict were to have any chance of successful rehabilitation. Success would also depend upon having adequate support. None of these mechanisms were available to Mr Moeys upon his release in 2003 and, according to Mr Joblin, it was inevitable that Mr Moeys would return to heroin use.

LIKELIHOOD THAT CONDUCT MAYBE REPEATED (INCLUDING RISK OF RECIDIVISM)

37. The Ministerial Direction states that it is the Government’s view that a person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. While Mr Moeys’ criminal record is clearly extensive, other than the affray in 1994, his crimes are closely linked to his heroin addiction. In particular, the robberies and thefts he committed in 2001 and in 2003/2004 were to support Mr Moeys’ heroin addiction. I accept Mr Moeys’ evidence that he did not commit any of those crimes for profit. Therefore, it seems reasonably apparent that if Mr Moeys can overcome his heroin addiction, the risk of recidivism would be small.
38. There are some significant differences between Mr Moeys’ situation as it was upon his release in April 2003 and the present. Since he has been imprisoned on this last occasion, he has undergone a drug relapse prevention program and a drug education program. He has also undertaken individual alcohol and other drug counselling from Uniting Care Moreland Hall since 1 June 2005. He has participated in eight sessions focusing on the reasons for his drug use, identifying triggers and high risk situations, setting goals, identifying coping strategies and motivation for change. While at Fulham Prison, Mr Moeys applied to participate in the COG skills program, the intensive drug treatment program and the anger management program. However, before he could begin those courses, he was told he would be transferred to Margoneet Prison which is now responsible for those programs. Despite being told that his move to Margoneet Prison was imminent, he was not moved to that prison. He said he was willing to undertake any programs offered at Fulham but, before he could participate in such programs, he was transferred back to Port Phillip Prison. Mr Moeys denied that, as is stated in a report by Mr John Myers, who is the General Manager of the Fulham Correctional Centre, he told the Adult Parole Board that he was not interested in doing any programs in drug education.
39. Mr Myers’ report states that, during his time in prison, Mr Moeys was subjected to urine testing on a total of 15 occasions and all tests returned a negative result. According to Mr Joblin, this is highly encouraging. Furthermore, according to Mr Joblin, it would be essential upon release that the Parole Board makes it a condition of Mr Moeys’ parole that he attends continuing drug rehabilitation programs. In other words, his ongoing rehabilitation should be coercive. Mr Joblin also noted that since his incarceration on this occasion, Mr Moeys has re-developed a strong relationship with Ms Kovacevic and he has also developed a conscience and feelings of responsibility. According to Mr Joblin, the fact that he can now discuss his use of heroin, his development of a conscience and that he now has feelings of responsibility, supports a reasonably optimistic prognosis if he is released to the community.
40. Upon his release, Mr Moeys would like to study further, particularly in the field of information technology. He plans to settle down with his girlfriend, Ms Kovacevic, who appears to be very supportive of him. She has not used heroin for about four years; and since 2004, she has resumed her relationship with him albeit by telephone and letters. Although she is currently living with her sister and looking after her sister’s four-month old twins, she is prepared to live with Mr Moeys and to support him. Ms Kovacevic indicated that even for herself, avoiding heroin will be an ongoing battle. However, she appeared to be strongly committed to keeping away from heroin use and I believe that she will provide substantial support to Mr Moeys. Ms Kovacevic continues to have psychiatric counselling but seems very determined to make something of the future. Mrs I. Moeys, Mr Moeys’ mother, also gave evidence indicating strong support for her son. She said that she would be pleased to have Mr Moeys live with her; although she confessed that there were few job opportunities in Devonport and that might pose further difficulties for him. Nevertheless, she is willing to offer him any support which she is able to give.
41. Mr Moeys sister, Ms I. Bourne, resides in Melbourne. She has kept in telephone contact with him while he has been in prison, not being able to travel to Fulham to see him regularly because of her children. She nevertheless remains strongly supportive and wants him to be part of the family once again.
42. Mr Harris of counsel, who represented Mr Moeys, directed my attention to Mr Moeys’ prison record since he has been at Fulham. On 11 March 2004 Mr Moeys had an argument with a prison officer. Although the charge was proven, he was not reprimanded. It was a minor incident. He was charged on 3 April 2004 with assaulting staff, but that charge was dismissed and did not go to a Governor’s Hearing. On 1 July 2004 he was charged with possessing a weapon. Mr Moeys said that a piece of steel was found in the cell to which he had been recently moved. He said it was not his but it was in his cell and therefore he was guilty. On 29 September 2005 he was again charged with possessing a weapon when a piece of plastic or acrylic was found in his mattress. Again he said it did not belong to him but nevertheless the charge was proven. On the same day, arising out of the finding of the plastic or piece of acrylic in his mattress, he argued with prison officers and was charged with that. On 29 November 2005 he was charged with assaulting a prisoner and the report indicates that this charge is still under investigation. Mr Moeys said that there was an altercation in a unit and about 20 people were involved and charged. Subsequently, there was a hearing and the charge against him was dismissed. On 18 May 2006 he was charged with unauthorised smoking. He said that he was smoking in his cell and that he was reprimanded for that. Given that these incidents occurred over a period of some two and a half years, it seems to me that there is nothing of any significance which arises out of those charges.
43. Overall, my impression is that while a risk of recidivism clearly exists in the case of a long term drug user such as Mr Moeys, the imposition of a coercive drug rehabilitation program upon release coupled with strong support from Ms Kovacevic and his family would considerably lessen that risk.

GENERAL DETERRENCE

44. There was no evidence before me at all to indicate that the cancellation of Mr Moeys visa would prevent or inhibit the commission of like offences by other persons. Given the unfortunately common nature of the offences committed by Mr Moeys, and the fact that he is addicted to heroin, his deportation is hardly likely to attract any media attention. Without media attention, it is unlikely that persons in a similar position would even become aware of Mr Moeys visa cancellation and deportation. Accordingly, I cannot place much weight on this consideration.

EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

45. The Ministerial Direction requires the decision-maker to have due regard to the government’s view regarding the expectations of the Australian community. The Ministerial Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is significant risk that they will breach this trust, or where the non-citizen has been convicted in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. While that expectation seems quite reasonable regarding persons who have come to Australia for a short visit or have only been in Australia for a short period of time, the Australian community may well view the matter differently where the non-citizen is a permanent resident and has lived in Australia for most of his or her life, as has Mr Moeys. In fact, Mr Moeys has now resided in Australia for 27 years. He was three and a half years old when his family immigrated and all of his schooling and formative years were in Australia. He has no relatives in Holland, he barely speaks the Dutch language and he cannot read or write in Dutch. The only relatives he has are in Australia. Were he deported, he would have no money; extremely limited prospects of obtaining employment; and probably no chance of obtaining rehabilitation for his heroin addiction in Holland. In these circumstances, in my view, it is unlikely that the Australian community would expect Mr Moeys to be deported.
46. Although there is no doubt Mr Moeys offences are serious, as Stott J said in his sentencing report, they are at the lower end of the scale of seriousness.
47. The Commonwealth Ombudsman, in a report prepared in 2006, regarding the cancellation of visas of long-term residents under s 501 of the Act, referred to the Ministerial Direction where it states that the Australian community expects non-citizens to obey Australian laws while in Australia. The use of this expression, according to the Ombudsman, raises a question about applying s 501 to long-term residents. The Ombudsman also commented that there is no reference to that well known Australian expectation that everyone should be given a fair go.
48. Concern about deporting long-term residents under se 501 of the Act has also been frequently echoed by judges of the Federal Court of Australia. By way of example, in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121; (2005) 143 FCR 420 Moore and Gyles JJ said, in a case not dissimilar to this, where the appellant was one month old when he came to Australia and had lived here since January 1974:

This is yet another disturbing application s 501 of the Migration Act 1958 (Cth).

And further, at page 422,

The appellant has been entirely brought up in Australia. It was only happenchance that he was not born here. He is only an alien by the barest of threads. However, if the decision under challenge here stands he will be deported to Sweden and permanently banished from Australia. That result causes us a similar sense of disquiet to that expressed by Spender J. in Shaw v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 106; (2005) 142 FCR 402, particularly at [2]–[5] and Sackville and Allsop JJ in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 126 FCR 152 [1] and [64]–[79] respectively. It suggests that administration at this aspect of the Act may have lost its way.

49. Emmett J., the dissenting Judge in that case, said at 433:

...While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language would be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents...

50. Furthermore, Mr Callanan, the DIMA’s Deputy State Director, Victoria, in his statement of reasons for deciding to cancel Mr Moeys’ visa, accepted that the Australian community would also have some compassion for Mr Moeys given his circumstances.
51. In my view, the Australian community would not expect Mr Moeys to be deported in these circumstances.

BEST INTERESTS OF THE CHILD

52. This consideration does not arise in Mr Moeys’ case as there are no relevant children involved.

OTHER CONSIDERATIONS

53. The relevant matters under this heading are given less individual weight than that given to the primary considerations, as is required by the Ministerial Direction.
54. Considerable hardship would be imposed on Mr Moeys’ family were he deported. They all reside in Australia. Mrs Moeys and his sister, Ms Bourne, have said that they could not afford to visit him in Holland. They also said that, given the expense of overseas telephone calls, direct contact would be minimal. Mr Moeys has no relatives in Holland and therefore he would have no support there at all. My attention was also directed to Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) which provides that:

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

55. Given the fact that Mr Moeys’ family is entirely in Australia, and that he has no ties whatsoever to Holland, there is some substance in the submission that Mr Moeys’ deportation would indeed be harsh; and possibly in contravention of Article 23.1 of the ICCPR. I nevertheless accept, as stated by the Ombudsman, that international obligations are subject to an overriding qualification that the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty.
56. I also note that paragraph 2.17(k) of the Ministerial Direction provides that it is a relevant consideration that:

a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

Such a notice was given to Mr Moeys and it referred to his criminal history as the reason why his visa might be cancelled. Therefore Mr Moeys was directly aware that if he re-offended, he might be under substantial risk of having his visa cancelled.

57. It is not insignificant that when the Delegate made his decision to cancel Mr Moeys visa under s 501(2), he made a note stating:

I would be inclined to issue a warning to Mr Moeys but for the fact that he was issued a Notification of the intention to consider cancellation of his visa on 12 Feb 2003 in response to which he said he was shocked at the prospect and asked for a chance to mend his way.

58. As Mr Brereton pointed out, the letter of 12 February 2003 does not constitute a warning for the purposes of paragraph 2.10(a) of the Ministerial Direction. Rather, it is a notice under paragraph 2.17(k). It would appear that the Delegate has treated it as a formal warning which would bring it under the primary considerations and therefore carry substantial weight. If he did, that was clearly an error. It is difficult to understand how the Delegate, if he had correctly treated the 12 February 2003 letter as a notice under paragraph 2.17(k) of the Ministerial Direction, could conclude that although the fact of having been given notice carried less weight than the primary considerations, it nevertheless tipped the balance against Mr Moeys. Of course it is possible that the Delegate simply treated Mr Moeys’ failure to cease his criminal activity in 2003 following the notice as indicating a likelihood that his conduct will be repeated and therefore the risk of recidivism was high. However, as I have explained above, it would appear that Mr Moeys’ current circumstances are quite different to those following his release on parole in April 2003.

DECISION

59. While I have no doubt that Mr Moeys’ past criminal conduct is serious and he has an extensive criminal record, the crimes for which he has been convicted are at the lower end of the scale of serious crimes. The crimes were not committed for personal financial gain but for the purpose of sustaining his heroin addiction. The likelihood that Mr Moeys’ conduct will be repeated is heavily dependent on whether he will revert to using heroin when released from prison. While I am under no misapprehension about the difficulty that Mr Moeys faces, I accept Mr Joblin’s view that Mr Moeys’ rehabilitation has far greater prospects of success on this occasion when compared with 2003. This will be particularly so if Mr Moeys is required, as a condition of his bail, to undertake continuing drug rehabilitation. That, coupled with the fact that he appears to have developed a conscience about his conduct; his increased maturity; and the fact that his urine tests while in prison have all proved negative, are positive indications that he may succeed. He will also have the support of Ms Kovacevic and other members of his family.
60. It is my opinion that the expectations of the Australian community are, in cases such as these, in the applicants’ favour. I find support from the views expressed by the Commonwealth Ombudsman following his investigation into the cancellation of the visas of non-citizens who have resided in Australia for periods in excess of 10 years. I also find support from the number of Federal Court judges who have expressed their concern about deportation in circumstances such of those of Mr Moeys. I expect Federal Court judges are well in touch with the expectations of the Australian community.
61. There are other considerations which, while having less weight, nevertheless support the view that Mr Moeys’ visa ought not to be cancelled. Therefore, I have come to the view that the Delegate’s decision to cancel Mr Moeys visa under s 501(2) of the Act should be set aside.

POWER ISSUE

62. Mr Harris submitted that the Delegate had no power or authority to cancel Mr Moeys permanent visa under s 501 of the Act because of the 10 year protection to which he is entitled under s 201 of the Act. Section 200 provides that the Minister may order the deportation of a non-citizen to whom Division 9 of the Act applies. Under s 82(4) of the Act, where a person is deported because of a Deportation Order made under s 200, that person’s visa ceases to be in effect when the holder leaves Australia. Section 201 relevantly provides:

Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or

(ii) ...
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

63. Because Mr Moeys has been in Australia as a permanent resident for a period exceeding 10 years, the Minister does not have power under s 200 to order his deportation. It is of some interest to note the Minister’s Second Reading Speech when the Migration Amendment Bill 1983 was introduced to the House of Representatives where he said, at page 1085:

...
Apart from removing the distinction and discrimination between non-Commonwealth and other overseas-born residents who are not Australian citizens, the Bill also limits liability for deportation, generally speaking, to those non-citizens who commit offences during the first 10 years of permanent residence and introduces a more exact measure of the seriousness of the crime, that being an actual penalty of imprisonment for 12 months or more.
The introduction of a statutory liability period of 10 years authorised residence fulfils a pre-election commitment by my Government that non-citizens should be free from the threat of deportation after a certain period. Currently persons who are citizens of non-Commonwealth countries remain always liable to deportation unless they become Australian citizens. This is unacceptable. In administering a large-scale immigration program the Government and the community must be prepared to accept some bad with the good. The overwhelming majority of non-citizens who settle in this country are law-abiding members of the community and have a right to expect, after 10 years of lawful residence, that they will not be expelled...

64. Despite the protection against deportation after a non-citizen has resided in Australia for more than 10 years, s 501 of the Act provides that the Minister or his Delegate may cancel a person’s visa, resulting in that person being removed from Australia where, amongst other things, the person has a substantial criminal record which is defined as having been sentenced to a term of imprisonment of 12 months or more. Although s 501 is far wider than s 201, covering numerous circumstances in which a person’s visa may be refused or cancelled for failure to meet the character test, insofar as it relies on criminal conduct resulting in a person being sentenced to a term of imprisonment of 12 months or more, it appears that s 501 is co-extensive with s 201 of the Act. The clear purpose of both sections is to remove that person from Australia where that person has already entered the country. Therefore, to the extent that the two sections are co-extensive, the question which arises is whether s 501 is repugnant, in the sense that it is contradictory or inconsistent, to the 10 year protection provision in s 201.
65. The Full Court of the Federal Court dealt with this issue in Nystrom although the matter was not argued before it. The main argument before the Court was whether Mr Nystrom held a Transitional (Permanent) Visa or whether he held an Absorbed Person Visa (by virtue of s 34(2) of the Act). Mr Nystrom did not commit the criminal offences for which he was sentenced to imprisonment until he was an adult. Therefore, s 201 of the Act could not apply to him. The majority (Moore and Gyles JJ) said at 427:

21. [s 501]... does not deal with deportation for criminal conduct as such at all. That is the field of s 201. The original purpose of the section was to deal with the refusal to grant a visa. The primary purpose of a visa is to permit lawful entry into Australia and will normally be applied for and granted or refused prior to entry into Australia ...
...It is not surprising that there would be a wide discretion to refuse entry to Australia on character grounds. Checking of the character of offshore applicants is difficult. If it transpires that a mistake was made in granting a visa because of inadequate information concerning character, it is not surprising that there would be a ready power of cancellation when further information comes to hand. However, the section is not confined to cancellation proximate to grant.
22. The width of the potential application of s 501 makes it necessary, at the very least, for their to be proper identification and consideration of the nature of a visa to be cancelled directly or by force of s 501F(3). Bearing in mind the existence of Div 9 of Pt 2, it is difficult to see any real role to be played by s 501 in the case of criminal conduct in Australia by persons long absorbed into the Australian Community...

66. The majority of the court suggested it was timely that there be a review by the Minister of the proper approach in matters such as that which was before the court. They expressed concern about the use of s 501 to cancel a Permanent Absorbed Person visa of a person over 30 years of age who had spent all of his life in Australia. They went on to say at 429:

The first issue requiring reconsideration is use of s 501 in circumstances where the directly relevant substantive section (s 201) is not applicable. Section 501 should not be used to circumvent the limitations in s 201. Apart from anything else, to do so is to retrospectively disadvantage permanent visa holders who happen to be non-citizens. While it was not argued in these proceedings, it may be that the specific power conferred by s 201 to deport non-citizens who have committed crimes is the only source of power to deport (in a case such as the present) and not indirectly, the power conferred by s 501 to cancel a visa and livening the power to remove under s 198: see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 ; Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520 at [12]–[27].

67. Nystrom is presently on appeal to the High Court which has heard argument, but has not yet delivered its decision.
68. In response to Mr Harris’ contentions, Mr Brereton referred to Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 where, he submitted the Full Court of the Federal Court of Australia rejected the argument that ss 200 and 201 limit the operation of s 501. However, Gunner’s case is distinguishable by the fact that Mr Gunner committed crimes in Australia a little over one year after he became a permanent resident. Therefore, the so called protection in s 201 did not apply to him in any event. It goes without saying that the question of repugnancy was not argued in that case.
69. Mr Brereton then submitted that the Full Court’s Decision in Gunner has been approved several times by other Full Courts and cited in Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 178, at [16]; and Bridges v Multicultural and Indigenous Affairs [2001] FCA 1647; (2001) 114 FCR 456, at [51]. However, again, neither of those cases dealt with applicants who were resident in Australia for more than 10 years. For that reason, the question of repugnancy never arose, and in fact, in Bridges, the question dealt with by the Full Court was whether s 501 could limit the power in s 200 so as to prevent the Minister from taking into account non-deportable offences in considering whether or not to make a Deportation Order.
70. Mr Harris also submitted that the High Court in Minister for Immigration and Multicultural Affairs v Jia ( 2001) 205 CLR 507 said that the reasoning of the Full Court of the Federal Court in Gunner was correct. Be that as it may, the Full Court in Gunner did not deal with the repugnancy issue.
71. Mr Brereton relied on one further decision, that being the decision of Ryan J in Moran v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 242; (2006) 151 FCR 1. Again, that case did not deal expressly with the problem of repugnancy. Mr Moran arrived in Australia in either 1972 or 1973 and was convicted of stealing in 1978. Therefore, the 10 year exclusion period did not apply to him. His Honour analysed Gunner and Bridges, noting that the High Court in Jia had approved Gunner, and he concluded that, at page 33:

These analyses of the two statutory sources of power preclude the characterisation of s 501 as a General Power which must yield to the specific provisions of ss 200 and 201...

Ryan J pointed out that the majority in Nystrom did not refer to Gunner or, what he referred to as the extensive line of authority, which he considered bound him to hold that s 501 is an independent parallel source of power to cancel a visa and that it is not impliedly cut down by the presence in the Act of s 200 and s 201. However, his Honour did not specifically address the issue of repugnancy, nor was he required to do so, as that issue did not arise in Moran’s case.

72. It would seem to me that until the High Court makes its decision in the Nystrom appeal, I am without authority to decide this specific point. I accept that what was said by the majority of the Full Court in Nystrom was necessarily obiter dicta and cannot, in any event, be binding on me.
73. Mr Harris submitted that ultimately this matter will be decided on the basis of the correct application of principles of statutory interpretation. According to Mr Harris, the more general power set out in s 501(2) must be read subject to the specific power contained in s 200 and s 201 of the Act. To the extent that there is a repugnancy between s 201 and s 501(2) of the Act, Mr Harris submitted that the general provision must yield to the particular and he relied on a number of cases, in particular Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 to support this submission. That case involved an order made by the Commonwealth Court of Conciliation and Arbitration under the Commonwealth Conciliation and Arbitration Act (Cth) 1904-1930 (the Arbitration Act) which ordered employers to give preference to unionists when employing female operatives. That order, which was made under the general power of the court given by s 24(2) and s 38(a) to hear and determine industrial disputes, did not conform with conditions set out in s 40 of the Arbitration Act which conferred power on the court to direct that, among persons offering or desiring service or employment at the same time, members of organisations shall be preferred. Gavan Duffy CJ and Dixon J said, at page 7:

...
Extensive and unfettered as the authority of the court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec. 40 expressly gives a power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power...

74. In applying the principle stated by Gavan Duffy CJ and Dixon J, Mr Harris submitted that the Minister has no power or authority to circumvent protection given to Mr Moeys by s 201, by purporting to apply s 501 and removing him from Australia by that means. Mr Harris submitted that to do so would negative or impliedly repeal the express legislative protection given by s 201 to persons in Mr Moeys position. He submitted that was not the intent of the legislation. Mr Harris also relied on Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 where O’Connor J said at page 14:

...
Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply...

75. Although it is clear, from the cases which have examined the operation of s 201 and s 501 of the Act, that s 501 is a distinct power dealing with refusal and cancellation of visas, and that the character test in s 501 is substantially broader than the criminal offences referred to in s 201(c), in Mr Moeys case, reliance was only placed on the fact that he failed the character test because he had been sentenced to a term of imprisonment of 12 months or more. That, for the purpose of the character test, constitutes a substantial criminal record under s 501(7)(c) of the Act. Insofar as that subsection is concerned, it is precisely the same as one of the tests set out in s 201(c). Furthermore, because the application of s 501 is not limited to a non-citizen who has been resident in Australia for less than 10 years, there does appear to be repugnancy to that extent. Although I am inclined to the view that where s 501 is relied upon by the Minister to cancel the visa of a non-citizen who has resided in Australia for more than 10 years, that power must be exercised subject to the proviso in s 201 setting out the limitations on deportation of that category of non-citizen, I form no concluded opinion as the issue will shortly be resolved by the High Court.

CONCLUSIONS

76. In my opinion, having regard to all of the evidence and materials produced to me in this matter, and applying governmental policy as described in the Ministerial Direction, the principal considerations do not result in the conclusion that Mr Moeys’ visa should be cancelled. The crimes which he has committed are undoubtedly serious, although they are at the lower level of seriousness of the crimes described in the Ministerial Direction. While there remains a risk of recidivism, much will depend on Mr Moeys’ willingness and ability to overcome his heroin addiction. On the evidence provided at the hearing, and in particular the evidence of Mr Joblin, I am satisfied that the chances of recidivism are small. I agree with Pannam J who said in her sentencing report that on balance Mr Moeys chances of rehabilitation are reasonably good, subject to him having appropriate support on release. As Mr Joblin said, ...it is essential that Mr Moeys be required to continue with rehabilitation on his release and that it be made a condition of his parole. The matters which I have discussed and which fall under the heading Other Considerations in the Ministerial Direction also point strongly to the conclusion that Mr Moeys’ visa ought not be cancelled.
77. Although I favour the view that in cases such as this, where, for the purpose of cancelling the visa, the Minister has relied specifically on the fact that Mr Moeys has been imprisoned for a term exceeding 12 months, there is an inconsistency between s 501 and s 201 of the Act, the High Court will ultimately determine the power issue. It does not affect my determination on the discretionary issue.
78. I am therefore of the opinion that the decision made by the Delegate of the Minister on 17 July 2006 to cancel Mr Moeys visa should be set aside. Instead, Mr Moeys should be warned that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences.

I certify that the seventy-eight [78] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 27 September 2006
Date of Decision: 10 October 2006
Counsel for the applicant: Mr R. Harris
Solicitor for the applicant: Herbert Geer and Rundle
Counsel for the respondent: Mr M. Brereton
Solicitor for respondent: Australian Government Solicitor

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3.	Mr Moeys was born on 18 January 1976. He immigrated to Australia with his parents and sister, arriving on 9 July 1979. He was three and a half years old at that time. Although Mr Moeys left Australia on three occasions between 1986 and 1992 on holidays, he has resided permanently in Australia since his arrival. On 1 September 1994, by reason of the Migration Legislation Amendment Act 1994, Mr Moeys was deemed to be the holder of a Transitional (Permanent) Visa.
4.	Mr Moeys attended James Cook and Southern Cross primary schools followed by secondary school at Eummemerring. He also studied briefly at the Noble Park TAFE. He commenced his Victorian Certificate of Education (VCE) in 1992 and although he did not complete the certificate, he passed the majority of required subjects.
5.	Mr Moeys worked at a Kentucky Fried Chicken outlet (KFC) on a part-time basis while in his final year of schooling. That work continued to about 1995 by which time he was a shift supervisor at KFC Dandenong. He had also worked as trainee storemen with a picture framing company, Successories, in 1995/1996. He had a number of short-term jobs after registering with an employment agency. Mr Moeys obtained work with an automotive repair garage called Supaspray at Dandenong as a trade assistant between 1997 and 1998. The work involved the repair of motor vehicle bodies and spray painting. Mr Moeys was also employed as a trade assistant between 2000 and 2001 with a company called Newsweep Fleet Management, where he worked on mechanical and electrical repairs to the truck fleet operated by that company. He also prepared truck bodies for painting. Mr Moeys worked in a number of other factory jobs after leaving this company.
6.	By about 1992 or 1993, Mr Moeys began smoking marijuana and he used heroin occasionally. By about 1995 or 1996, Mr Moeys’ occasional heroin use became a full-blown addiction.
7.	On 27 May 1994 Mr Moeys was convicted of an affray and he received a sentence of nine months. He was detained for the first two months in a youth training centre at Parkville and then he was required to serve weekend detention.
8.	On 14 October 1997 Mr Moeys was convicted in the Dandenong Magistrates Court of theft of a motor vehicle, failure to answer bail, use of heroin and attempting to commit an indictable offence. He received a suspended sentence and was placed under a community based order for 18 months.
9.	On 5 March 1999 Mr Moeys was convicted of theft from a shop, possession of heroin, use of heroin, theft of a motor vehicle, attempting to commit an indictable offence and failure to answer bail. He was sentenced in the Dandenong Magistrates Court to a 24-month community based order and was required to undergo assessment and treatment for alcohol/drug addiction.
10.	Mr Moeys’ father suffered a stroke in May 2000 and died in September 2000.
11.	Between 29 March 2001 and 11 April 2001 Mr Moeys committed six counts of theft, five counts of robbery and one count of possession of a drug of dependence. He was released on bail in July 2001 pending trial. On 23 May 2002 he pleaded guilty to the crimes committed between 29 March and 11 April 2001 and he was sentenced in the Melbourne Country Court to 21 months imprisonment with a non-parole period of 12 months.
12.	Between 16 October 2001 and 26 October 2001 Mr Moeys committed 19 counts of theft, including the theft of four motor vehicles and $12,390.00 in cash. These offences were committed while he was on bail for the earlier offences. He pleaded guilty to these later offences and on 28 June 2002, he was sentenced in the Melbourne County Court to 13 months imprisonment with a single non-parole period of 18 months.
13.	On 2 July 2002 Mr Moeys was convicted of theft from a shop, possessing heroin, use of heroin, attempted possession of heroin and failure to answer bail. He was convicted and fined $250.00.
14.	On 8 January 2003 Mr Moeys was convicted of robbery and intentionally causing injury; for which he was sentenced in the Melbourne Magistrates Court to a further two months imprisonment.
15.	By letter dated 12 February 2003 the DIMA gave Mr Moeys notice of its intention to consider cancelling his visa under s 501(2) of the Act. Mr Moeys acknowledged receipt of that letter on 18 February 2003.
16.	In April 2003 Mr Moeys was released on parole.
17.	Between 5 September 2003 and 2 February 2004, Mr Moeys committed five counts of robbery, 49 counts of theft, 4 counts of attempted theft, and 1 count of making a threat to inflict serious injury. He was arrested on 3 February 2004 and remanded in custody. He pleaded guilty to all charges and on 4 November 2005 he was convicted in the Melbourne Country Court and sentenced to 3years and 10 months imprisonment with a non-parole period of 2 years and 6 months. He is currently in prison serving that sentence.
18.	While in prison, since 16 February 2004, Mr Moeys’ has had seven incidents recorded against him. They are as follows:

21.	Section 501(6) of the Act provides that a person does not pass the character test if, amongst other things, the person has a substantial criminal record. That term is defined in s 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more, the person has a substantial criminal record.
22.	The Delegate informed Mr Moeys by letter dated 19 July 2006 that, after taking into account his submissions following the notice given on 18 January 2006, the Delegate had decided to cancel his visa on the ground that he did not pass the character test due to his substantial criminal record.
23.	Mr Moeys does not dispute that the Delegate’s power to cancel his visa was enlivened because he failed to pass the character test and he accepts that he has a substantial criminal record as defined in s 501(7) of the Act. However, Mr Moeys contended that the Delegate ought not to have exercised his discretion to cancel Mr Moeys visa given his particular circumstances.
24.	Section 499(1) of the Act provides that the Minister may give written directions to person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Further, a person or body must comply with a direction made by the Minister under s 499(1). The relevant directions made by the Minister on 23 August 2001 are set out in Direction Ndeg. 21 and the Ministerial Direction makes it clear that it must be followed by the Tribunal. Broadly, the Ministerial Direction states that the exercise of the discretion under s 501 of the Act must take into account a wide range of factors including the expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations. As is stated in the Ministerial Direction, the purpose of refusing or cancelling a visa under s 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community.
25.	Although the Ministerial Direction sets out three primary considerations, which are regarded as most important, there are other considerations which also should be taken into account but given less weight in balancing all relevant considerations. The primary considerations when making a decision to cancel a visa are:

30.	Therefore, despite Mr Moeys’ protestations about whether or not he made the threats as stated in Judge Pannam’s sentencing remarks, I cannot, and do not, take into consideration Mr Moeys’ evidence about whether or not the stated threats were made. This is despite the fact that he pleaded guilty to these offences and they were never tested before the court. Having consented to plead guilty to the charges as framed, Mr Moeys cannot now resile from that position.
31.	However, I do accept Mr Moeys’ evidence regarding the absence of weapons. I have no doubt that he would have been charged with armed robbery had he carried a weapon at any stage.
32.	It is also the government’s view (paragraph 2.7 of the Ministerial Direction) that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. Mr Brereton pointed to the fact that the seriousness of Mr Moeys’ offences may also be inferred from the fact that the convictions for the offences committed in 2001 and 2003/2004 were made in the County Court rather than the Magistrates Court. However, Mr C. McLennan, a solicitor who acted for Mr Moeys in respect of those offences and who gave evidence before the Tribunal, said that generally Mr Moeys selected soft targets and was not aggressive or violent towards those persons. The robberies were essentially in the nature of shop thefts where the shop attendant was distracted and opened the till after which Mr Moeys or his accomplices snatched money from the till while telling the attendant to stand back. Although Mr Brereton contended that Mr Moeys targeted young women, possibly because of their vulnerability, I accept that Mr Moeys essentially sought soft targets because there was less likelihood of confrontation. Mr McLennan also pointed out that although he had no doubt that the shop attendants confronted by Mr Moeys suffered from some mental apprehension, there was only one victim impact statement produced to the court. This is consistent with Mr Moeys’ statement that he never intended to cause any harm to any person in the course of committing his robberies. Mr Moeys also said that he was driven to commit the crimes by his heroin addiction and the need to find money to pay for that addiction. That accords with the remarks made by the two sentencing Judges. In his sentencing remarks of 23 May 2002, Stott J said, at page 20:

37.	The Ministerial Direction states that it is the Government’s view that a person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. While Mr Moeys’ criminal record is clearly extensive, other than the affray in 1994, his crimes are closely linked to his heroin addiction. In particular, the robberies and thefts he committed in 2001 and in 2003/2004 were to support Mr Moeys’ heroin addiction. I accept Mr Moeys’ evidence that he did not commit any of those crimes for profit. Therefore, it seems reasonably apparent that if Mr Moeys can overcome his heroin addiction, the risk of recidivism would be small.
38.	There are some significant differences between Mr Moeys’ situation as it was upon his release in April 2003 and the present. Since he has been imprisoned on this last occasion, he has undergone a drug relapse prevention program and a drug education program. He has also undertaken individual alcohol and other drug counselling from Uniting Care Moreland Hall since 1 June 2005. He has participated in eight sessions focusing on the reasons for his drug use, identifying triggers and high risk situations, setting goals, identifying coping strategies and motivation for change. While at Fulham Prison, Mr Moeys applied to participate in the COG skills program, the intensive drug treatment program and the anger management program. However, before he could begin those courses, he was told he would be transferred to Margoneet Prison which is now responsible for those programs. Despite being told that his move to Margoneet Prison was imminent, he was not moved to that prison. He said he was willing to undertake any programs offered at Fulham but, before he could participate in such programs, he was transferred back to Port Phillip Prison. Mr Moeys denied that, as is stated in a report by Mr John Myers, who is the General Manager of the Fulham Correctional Centre, he told the Adult Parole Board that he was not interested in doing any programs in drug education.
39.	Mr Myers’ report states that, during his time in prison, Mr Moeys was subjected to urine testing on a total of 15 occasions and all tests returned a negative result. According to Mr Joblin, this is highly encouraging. Furthermore, according to Mr Joblin, it would be essential upon release that the Parole Board makes it a condition of Mr Moeys’ parole that he attends continuing drug rehabilitation programs. In other words, his ongoing rehabilitation should be coercive. Mr Joblin also noted that since his incarceration on this occasion, Mr Moeys has re-developed a strong relationship with Ms Kovacevic and he has also developed a conscience and feelings of responsibility. According to Mr Joblin, the fact that he can now discuss his use of heroin, his development of a conscience and that he now has feelings of responsibility, supports a reasonably optimistic prognosis if he is released to the community.
40.	Upon his release, Mr Moeys would like to study further, particularly in the field of information technology. He plans to settle down with his girlfriend, Ms Kovacevic, who appears to be very supportive of him. She has not used heroin for about four years; and since 2004, she has resumed her relationship with him albeit by telephone and letters. Although she is currently living with her sister and looking after her sister’s four-month old twins, she is prepared to live with Mr Moeys and to support him. Ms Kovacevic indicated that even for herself, avoiding heroin will be an ongoing battle. However, she appeared to be strongly committed to keeping away from heroin use and I believe that she will provide substantial support to Mr Moeys. Ms Kovacevic continues to have psychiatric counselling but seems very determined to make something of the future. Mrs I. Moeys, Mr Moeys’ mother, also gave evidence indicating strong support for her son. She said that she would be pleased to have Mr Moeys live with her; although she confessed that there were few job opportunities in Devonport and that might pose further difficulties for him. Nevertheless, she is willing to offer him any support which she is able to give.
41.	Mr Moeys sister, Ms I. Bourne, resides in Melbourne. She has kept in telephone contact with him while he has been in prison, not being able to travel to Fulham to see him regularly because of her children. She nevertheless remains strongly supportive and wants him to be part of the family once again.
42.	Mr Harris of counsel, who represented Mr Moeys, directed my attention to Mr Moeys’ prison record since he has been at Fulham. On 11 March 2004 Mr Moeys had an argument with a prison officer. Although the charge was proven, he was not reprimanded. It was a minor incident. He was charged on 3 April 2004 with assaulting staff, but that charge was dismissed and did not go to a Governor’s Hearing. On 1 July 2004 he was charged with possessing a weapon. Mr Moeys said that a piece of steel was found in the cell to which he had been recently moved. He said it was not his but it was in his cell and therefore he was guilty. On 29 September 2005 he was again charged with possessing a weapon when a piece of plastic or acrylic was found in his mattress. Again he said it did not belong to him but nevertheless the charge was proven. On the same day, arising out of the finding of the plastic or piece of acrylic in his mattress, he argued with prison officers and was charged with that. On 29 November 2005 he was charged with assaulting a prisoner and the report indicates that this charge is still under investigation. Mr Moeys said that there was an altercation in a unit and about 20 people were involved and charged. Subsequently, there was a hearing and the charge against him was dismissed. On 18 May 2006 he was charged with unauthorised smoking. He said that he was smoking in his cell and that he was reprimanded for that. Given that these incidents occurred over a period of some two and a half years, it seems to me that there is nothing of any significance which arises out of those charges.
43.	Overall, my impression is that while a risk of recidivism clearly exists in the case of a long term drug user such as Mr Moeys, the imposition of a coercive drug rehabilitation program upon release coupled with strong support from Ms Kovacevic and his family would considerably lessen that risk.

45.	The Ministerial Direction requires the decision-maker to have due regard to the government’s view regarding the expectations of the Australian community. The Ministerial Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is significant risk that they will breach this trust, or where the non-citizen has been convicted in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. While that expectation seems quite reasonable regarding persons who have come to Australia for a short visit or have only been in Australia for a short period of time, the Australian community may well view the matter differently where the non-citizen is a permanent resident and has lived in Australia for most of his or her life, as has Mr Moeys. In fact, Mr Moeys has now resided in Australia for 27 years. He was three and a half years old when his family immigrated and all of his schooling and formative years were in Australia. He has no relatives in Holland, he barely speaks the Dutch language and he cannot read or write in Dutch. The only relatives he has are in Australia. Were he deported, he would have no money; extremely limited prospects of obtaining employment; and probably no chance of obtaining rehabilitation for his heroin addiction in Holland. In these circumstances, in my view, it is unlikely that the Australian community would expect Mr Moeys to be deported.
46.	Although there is no doubt Mr Moeys offences are serious, as Stott J said in his sentencing report, they are at the lower end of the scale of seriousness.
47.	The Commonwealth Ombudsman, in a report prepared in 2006, regarding the cancellation of visas of long-term residents under s 501 of the Act, referred to the Ministerial Direction where it states that the Australian community expects non-citizens to obey Australian laws while in Australia. The use of this expression, according to the Ombudsman, raises a question about applying s 501 to long-term residents. The Ombudsman also commented that there is no reference to that well known Australian expectation that everyone should be given a fair go.
48.	Concern about deporting long-term residents under se 501 of the Act has also been frequently echoed by judges of the Federal Court of Australia. By way of example, in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121; (2005) 143 FCR 420 Moore and Gyles JJ said, in a case not dissimilar to this, where the appellant was one month old when he came to Australia and had lived here since January 1974:

50.	Furthermore, Mr Callanan, the DIMA’s Deputy State Director, Victoria, in his statement of reasons for deciding to cancel Mr Moeys’ visa, accepted that the Australian community would also have some compassion for Mr Moeys given his circumstances.
51.	In my view, the Australian community would not expect Mr Moeys to be deported in these circumstances.

59.	While I have no doubt that Mr Moeys’ past criminal conduct is serious and he has an extensive criminal record, the crimes for which he has been convicted are at the lower end of the scale of serious crimes. The crimes were not committed for personal financial gain but for the purpose of sustaining his heroin addiction. The likelihood that Mr Moeys’ conduct will be repeated is heavily dependent on whether he will revert to using heroin when released from prison. While I am under no misapprehension about the difficulty that Mr Moeys faces, I accept Mr Joblin’s view that Mr Moeys’ rehabilitation has far greater prospects of success on this occasion when compared with 2003. This will be particularly so if Mr Moeys is required, as a condition of his bail, to undertake continuing drug rehabilitation. That, coupled with the fact that he appears to have developed a conscience about his conduct; his increased maturity; and the fact that his urine tests while in prison have all proved negative, are positive indications that he may succeed. He will also have the support of Ms Kovacevic and other members of his family.
60.	It is my opinion that the expectations of the Australian community are, in cases such as these, in the applicants’ favour. I find support from the views expressed by the Commonwealth Ombudsman following his investigation into the cancellation of the visas of non-citizens who have resided in Australia for periods in excess of 10 years. I also find support from the number of Federal Court judges who have expressed their concern about deportation in circumstances such of those of Mr Moeys. I expect Federal Court judges are well in touch with the expectations of the Australian community.
61.	There are other considerations which, while having less weight, nevertheless support the view that Mr Moeys’ visa ought not to be cancelled. Therefore, I have come to the view that the Delegate’s decision to cancel Mr Moeys visa under s 501(2) of the Act should be set aside.

67.	Nystrom is presently on appeal to the High Court which has heard argument, but has not yet delivered its decision.
68.	In response to Mr Harris’ contentions, Mr Brereton referred to Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 where, he submitted the Full Court of the Federal Court of Australia rejected the argument that ss 200 and 201 limit the operation of s 501. However, Gunner’s case is distinguishable by the fact that Mr Gunner committed crimes in Australia a little over one year after he became a permanent resident. Therefore, the so called protection in s 201 did not apply to him in any event. It goes without saying that the question of repugnancy was not argued in that case.
69.	Mr Brereton then submitted that the Full Court’s Decision in Gunner has been approved several times by other Full Courts and cited in Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 178, at [16]; and Bridges v Multicultural and Indigenous Affairs [2001] FCA 1647; (2001) 114 FCR 456, at [51]. However, again, neither of those cases dealt with applicants who were resident in Australia for more than 10 years. For that reason, the question of repugnancy never arose, and in fact, in Bridges, the question dealt with by the Full Court was whether s 501 could limit the power in s 200 so as to prevent the Minister from taking into account non-deportable offences in considering whether or not to make a Deportation Order.
70.	Mr Harris also submitted that the High Court in Minister for Immigration and Multicultural Affairs v Jia ( 2001) 205 CLR 507 said that the reasoning of the Full Court of the Federal Court in Gunner was correct. Be that as it may, the Full Court in Gunner did not deal with the repugnancy issue.
71.	Mr Brereton relied on one further decision, that being the decision of Ryan J in Moran v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 242; (2006) 151 FCR 1. Again, that case did not deal expressly with the problem of repugnancy. Mr Moran arrived in Australia in either 1972 or 1973 and was convicted of stealing in 1978. Therefore, the 10 year exclusion period did not apply to him. His Honour analysed Gunner and Bridges, noting that the High Court in Jia had approved Gunner, and he concluded that, at page 33:

76.	In my opinion, having regard to all of the evidence and materials produced to me in this matter, and applying governmental policy as described in the Ministerial Direction, the principal considerations do not result in the conclusion that Mr Moeys’ visa should be cancelled. The crimes which he has committed are undoubtedly serious, although they are at the lower level of seriousness of the crimes described in the Ministerial Direction. While there remains a risk of recidivism, much will depend on Mr Moeys’ willingness and ability to overcome his heroin addiction. On the evidence provided at the hearing, and in particular the evidence of Mr Joblin, I am satisfied that the chances of recidivism are small. I agree with Pannam J who said in her sentencing report that on balance Mr Moeys chances of rehabilitation are reasonably good, subject to him having appropriate support on release. As Mr Joblin said, ...it is essential that Mr Moeys be required to continue with rehabilitation on his release and that it be made a condition of his parole. The matters which I have discussed and which fall under the heading Other Considerations in the Ministerial Direction also point strongly to the conclusion that Mr Moeys’ visa ought not be cancelled.
77.	Although I favour the view that in cases such as this, where, for the purpose of cancelling the visa, the Minister has relied specifically on the fact that Mr Moeys has been imprisoned for a term exceeding 12 months, there is an inconsistency between s 501 and s 201 of the Act, the High Court will ultimately determine the power issue. It does not affect my determination on the discretionary issue.
78.	I am therefore of the opinion that the decision made by the Delegate of the Minister on 17 July 2006 to cancel Mr Moeys visa should be set aside. Instead, Mr Moeys should be warned that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences.