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Immigration Daily News 7 year jail sentence alone is insufficient to fail character test
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7 year jail sentence alone is insufficient to fail character test
Minister’s visa cancellation decision is deemed too severe and is set aside by the AAT.
In October 2013, Immigration Minister Scott Morrison ruled that Sean Gabriel did not pass the character test and decided to cancel his visa, due to his part in the 2008 violent attack and robbery on Dr Mukesh Haikerwal and four others. Gabriel was sentenced to a 7 year prison term for the attack which the courts stated were, "very serious, involving senseless extreme violence against totally innocent and defenceless victims".
The Administrative Appeals Tribunal of Australia (AAT) has however set aside the Minister’s decision. The Tribunal held that Gabriel has a low to moderate chance of reoffending; he would have trouble resettling in his birthplace New Zealand which he had left at the age 10; and the Tribunal also referred to the Victorian Court of Appeal’s following considerations:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.[27]
The Court heard that Dr Haikerwal, a prominent doctor and former chief of the Australian Medical Association was threatened with a knife by Gabriel and then held down while being bashed so violently by Gabriel's accomplices that his skull could be heard cracking. Dr Haikerwal says the decision to now allow his New Zealand attacker to remain in Australia sends a "very poor" message:
"Brain injury is devastating and often leads to death, the crimes are horrendous - and then we see decisions that are more in the interest of the perpetrators of crime."
Dr Haikerwal suffered a severe brain injury, blood clots in the brain and had to be put into a medically induced coma to save his life.
Comments
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Sunday, 12 January 2014Does anyone know if this will be appealed through the courts by the Minister?
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Wednesday, 15 January 2014
This is the chance for the Minister to proof his worth. We're all sick of the Australian court system that only concerns about the losers and cowards and ignoring the welfare and impact of the innocent victims and their family.
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Monday, 20 January 2014
It's probably worth writing to your local MP or having the MA write to the Minister about this.
Immigration blog
Asylum seekers arriving after July 19, 2013 will never be resettled in Australia. Gabriel will continue to be allowed to live in Australia the rest of his life.
When you take into consideration the sense of proportion of their potential contributions to society, danger to the Australian community and worthiness to live in Australia - I'd rather have 10 or even 100 of them than this guy, who would still be entitled to a high standard of living in NZ if he was deported.
Seriously AAT - how hard would it really be for him to settle in NZ when he speaks the same language, has a decent level of education (primary and at least some high school), probably has relatives there and has access to full government services? Besides, a flight from Victoria to NZ so his relatives in Australia can visit him is not very far nor expensive.
New migrants to Australia from non-English speaking backgrounds (eg Indians, Chinese) have it 10 times harder to settle in Australia than he would find it returning to NZ! Asylum seekers would find it even harder due to their personal experiences of persecution, differing education level and very different cultures, yet they can still settle and survive in Australia!
The AAT needs to be tougher.