Alston and Minister for Immigration and Multicultural Affairs
[2006] AATA 214
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1020
GENERAL ADMINISTRATIVE DIVISION ) ALAN ALSTON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr Julian Block, Deputy President Date 9 March 2006
Place Sydney
Decision The Tribunal sets aside the decision under review and remits the matter
to the Respondent with a direction that the discretion not to refuse the
grant of a visa under section 501(1) of the Migration Act 1958 should be
exercised in favour of Anthony John Diprose.[Sgd] Mr Julian Block, Deputy President
CATCHWORDS
IMMIGRATION – refusal of Subclass 138 (Skilled-Australian-Sponsored) Visa – criminal conduct of visa Applicant - crime against child – Applicant does not pass the character test because of length of his sentence – consideration of discretion in Part 2 of Direction 21– minimal risk of recidivism – minimal risk to Australian community – seriousness and nature of conduct – expectation of the Australian community –hardship considerations – false completion of landing card discretion exercised in Applicant’s favour – decision to refuse visa set aside.
Migration Act 1958 – sections 501(1), 234
Direction 21
Re Tunzelman and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 528
Re Kelly Margaret Best and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 348
Re Kevin Marion Dunbar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 49
Re Hall and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 834
REASONS FOR DECISION
9 March 2006 Mr Julian Block, Deputy President PART A - introduction and general
1. The decision before the Tribunal is the refusal dated 22 June 2005 by the Respondent of an application for a Subclass 138 (Skilled Australian-Sponsored) visa applied for on 6 October 2004 by Anthony John Diprose (the “Visa Applicant”); review of the decision was sought by the Applicant, who is the Visa Applicant’s father-in-law.
2. The Applicant was represented at the hearing by Mr Peter Diprose, who is the Visa Applicant’s father. Mr Peter Diprose at one stage applied to be joined as an applicant but did not (and for reasons which are not relevant) pursue that application. The Respondent was represented by Mr T Eteuati of Clayton Utz, solicitors.
3. .The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with two Exhibits; Exhibit A1 is a batch of references concerning the Visa Applicant and sent to the Tribunal by the Applicant under cover of a letter dated 7 January 2006; Exhibit A2 is a statement by Mr Peter Diprose.
4. The Tribunal was, as is usual in these matters, furnished by the Respondent with a Statement of Facts and Contentions dated 13 February 2006 and which contains, under the head of Facts, a useful chronology of relevant event (referred to in these reasons as “the Chronology”) and which reads as follows:
“FACTS
20.09.70
Mr Anthony John Diprose, the son-in-law of Mr Alan Alston born in England.
13.09.94
Mr Diprose convicted by Preston Crown Court, Lancashire, of:
Two counts of gross indecency with child - imprisonment 30 months and 12 months (concurrent);
Indecent assault on female under 14 - imprisonment 30 months (concurrent); and
Indecent assault on female under 16 - imprisonment 30 months (concurrent)
(T7, pp123-124)
12.12.95
Mr Diprose released from HMP Wymott, Leyland, Lancashire (T11, p142)
12.03.97
Mr Diprose's sentence expired (T11, p142).
18.12.99
Mr Diprose entered Australia on Subclass 976 visitor visa. (T8, p128)
In completing his Incoming Passenger Card, Mr Diprose answered "no" to the question "Do you have any criminal convictions?" (T10, p134)
13.01.00
Mr Diprose departed Australia. (T8, p128)
07.08.03
Mr Diprose refused Subclass 676 visitor visa under s 501. (T4)
18.10.03
Mr Diprose and Karen Diprose married (T6, p77)
16.03.04
Mr Alston submitted sponsorship to DIMIA. (T5)
06.10.04
Mr Diprose's application for a Subclass 138 (Skilled-Australian Sponsored) visa lodged by primary applicant, Karen Diprose at the Adelaide Skilled Processing Centre. (T2, p7)
31.03.05
Notice of intention to refuse visa application under s 501(1) sent to Mr Diprose. (T9, p131)
17.06.05
Delegate of the Minister refused Mr Diprose's visa application under s 501(1). (T2)
22.06.05
Refusal decision sent to Mr Diprose's agent. (T2, p4)
08.08.05
Mr Alston applied for review of delegate's decision by Tribunal (T1).
11.08.05
Tribunal extended time for the making of the application for review.”
5. Evidence was given by the Visa Applicant by telephone link to the United Kingdom; oral evidence was also given by each of the Applicant and Mr Peter Diprose.
PART B - the evidence of the visa applicant
6. The Applicant is presently resident in Preston, England. He is a builder, or to be more specific a hod carrier, and as such a contractor to Barratts plc, a very large building contractor in the United Kingdom.
7. The Visa Applicant was born in Lancashire, England on 20 September 1970. He attended schools in Chorley and Preston in the north of England and including as his final school, Cardinal Newman School in Preston. He attained O levels in a number of subjects and A levels in three subjects, being biology, English and general studies. He attained, so far as I could judge, the equivalent of an HSC.
8. After leaving school in 1987, the Visa Applicant started work as a trainee civil engineer employed by Subsurface in Preston. After about a year with that company he joined the civil service and where he attended to legal aid assessments for the Legal Aid Bureau. That job, in which he attained some computer programming skills (albeit not of a very high standard), ended after about five years when he was convicted (on 13 September 1994) of the offences referred to in the Chronology. He was sentenced to terms of imprisonment which ran concurrently and so that the actual term to be served was 30 months. He was released after he had served 15 months, in December 1995.
9. The Visa Applicant said that his half-sister accused him of sexual abuse, that he was interviewed by the police, taken to court and bailed. At his trial he pleaded guilty. The words “his half-sister accused me” do not by any means tell the whole story. The Visa Applicant’s parents were divorced when he was very young. His mother remarried a Mr Tarney and had three further children (half siblings of the Visa Applicant) by that marriage. With the consent of the Visa Applicant’s father, Mr Peter Diprose, the Visa Applicant was adopted by Mr Tarney and his name became Anthony John Diprose Tarney. The Visa Applicant did not receive warm treatment from his step-father and felt very much as an “odd man out”; he described himself also as “an outsider”. An incestuous relationship commenced between the Visa Applicant (when he was 14 years old) and a half-sister, who was seven years younger, and continued for some five years thereafter. It was, so the Visa Applicant said, intermittent and it ended at a time when he was 19 because of his feelings of guilt. The trial arose from a complaint by his half-sister some time after the affair ended and resulted in the sentence to which I have referred. Having regard to the age of the Visa Applicant’s half-sister when the relationship commenced, the Visa Applicant’s behaviour was reprehensible in the extreme; it has caused harm of an incalculable nature to the Visa Applicant’s half-sister who was described by the Applicant when he came to give evidence, as a “disturbed young woman now aged 27”. It is not possible to feel anything but abhorrence in respect of what occurred. At the same time the offences involved one child only, and not children. I am satisfied that the visa Applicant is not a pedophile in the sense that his sexual drive does not inevitably and continually cause him to be attracted to and make advances towards children.
10. While in jail the Visa Applicant took two courses. His mother and her family did not visit him in jail although they did write to him; the jail was according to his evidence, some 160 miles from their home.
11. On his release in 1995, the Visa Applicant at first had great difficulty in finding work. He worked initially and on a casual basis as a barman; after a time however he obtained employment as a computer programmer at a garden centre. At that time, he was playing in a football team which included employees in the construction industry. It was through their introduction that he joined Barratts plc as a hod carrier and where he received on-the-job training. His evidence was that he earned considerably more in the building industry than he earned as a computer programmer at the garden centre.
12. A hod carrier, according to the Visa Applicant’s evidence, acts as assistant to and sometimes manager of a bricklayer or bricklayers. The hod carrier organises supplies of materials and so that it is necessary only for the bricklayer to come onto the site. From the beginning, and as I have said, the Visa Applicant earned more than he had earned as a computer programmer. He is currently the sole hod carrier to nine bricklayers and as such earns £1,500 per week. The Visa Applicant and the bricklayers are all in relation to Barratts plc structured as independent contractors and as such are given tasks; the sooner a given task can be completed the sooner a new task can be undertaken. Greater productivity is rewarded by greater earnings.
13. When he was first released from jail, the Visa Applicant boarded for a period with his grandparents; he then obtained board and lodging at the home of Mr Anthony Bradshaw, who would thereafter become his brother-in-law; Mr Bradshaw and the Visa Applicant married sisters who are the daughters of the Applicant. Mr Bradshaw had become known to the Visa Applicant when he worked in the civil service and more particularly for the Legal Aid Bureau.
14. Although the Visa Applicant had met Karen Alston before he was sent to jail, the relationship ripened into a romance after his release. It culminated in their marriage in England in October 2003; twin daughters were born to them on 25 January 2006.
15. Contact between the Visa Applicant and his natural father ended at or about the time of his adoption. However, it was resumed some short while before his natural father Mr Diprose, emigrated to Australia. In December 1999, the Visa Applicant and Karen came to Australia to visit his and her close relations. The Visa Applicant had obtained an electronic visa through a travel agent in England.
16. The Visa Applicant was asked in categoric terms why he ticked the “No” box in relation to convictions on his landing card and his replies to this and subsequent questions on the same subject were not easy to reconcile. He said at first that he did so because the conviction was spent (and he referred throughout to “conviction” in the singular) although he also said that he and Karen were concerned about the possibility of deportation. He said that he became aware of the true situation when he later applied at Australia House for a visa to marry in Australia and where the questions asked were such that it was clear to him that it was necessary to disclose convictions of any nature and whether or not spent.
17. The Visa Applicant said that when he first noted the question on the landing card (which was given to him not long before their landing in Sydney) he asked Karen what she thought, and one or other of them indicated a view that the conviction was spent. The Visa Applicant went on to say that they had been flying for 23 hours and were tired; he was at that stage of his evidence firm in his view that the conviction was spent.
18. Subsequent evidence indicated that the Visa Applicant did not know when in England (let alone Australia) a conviction becomes spent. He said that there is a difference between a conviction being spent and a conviction whose existence need not be disclosed to a prospective employer.
19. When asked when the conviction was spent, the Visa Applicant said that he did not know. He then complained that the travel agent who sold him the air ticket should be blamed for not warning him as to the fact that he would be required to answer a question of this nature. In other evidence he said that he thought that the relevant period, and after which a conviction in England would in the ordinary course be spent is five years. (It may be noted that the period between conviction and the date of the trip was in excess but not greatly in excess, of five years).
20. Karen was not called to give evidence as to this aspect. Mr Diprose said that the Visa Applicant made a genuine mistake.
21. My own view in relation to the conflicting evidence by the Visa Applicant is that when the Visa Applicant and Karen were confronted with the question, they grasped at a straw; that straw was that the convictions were after the relevant period of time spent. (I note in this context that the Visa Applicant consistently referred to the “conviction” in the singular; the plural term would have been more accurate.) They adopted this line because the prospect of difficulties at Sydney Airport was something which they did not wish to contemplate. Somehow or other the concept of a spent conviction had become known (albeit in vague terms) to the Visa Applicant; it would appear that mention of this concept may have been made to him by a probation officer. This being so, it is not possible to say that the manner in which the Visa Applicant completed the landing card was totally without some (slight) foundation. At the same time the probabilities favour the conclusion is that this basis was used in order not to disclose the convictions. The Visa Applicant was probably aware of the fact that if he completed the landing card truthfully, the nature of the convictions would inevitably have resulted in, at the very least, a delay at Sydney Airport, and even conceivably deportation back to the United Kingdom. In completing the card, the Visa Applicant probably did not so truthfully. Apart from any other considerations he is sufficiently educated to know that English law was hardly relevant when landing in Australia and completing, in accordance with Australian migration law, an Australian landing card. The only safe and prudent course required disclosure. His attempt to blame the travel agent was unfortunate; it is hardly to be expected that travel agents could or would be expected to warn their clients in this fashion.
22. The Visa Applicant and Karen after a stay in Australia returned to England within the time period permitted by their visas. They did not in other words overstay their visas and did not (save as set out in the preceding clause) breach any Australian migration law.
23. In cross-examination the Visa Applicant referred in the first instance to T p142, a statement by Mary Whyham, Assistant Chief Probation Officer, dated 26 May 2000 and which reads as follows:
“To whom it may concern
Mr Anthony J Diprose Tarney (dob 20.9.70) was sentenced to 2½ years imprisonment on 13.9.94 at Preston Crown Court, Lancashire, for indecency on a child x 2 and indecent assault x 2. These charges were representative of his continued sexual abuse of his half sister over a period of several years. The offences began when he was approximately 14 years old. His half sister was 7 years younger. Mr Tarney has always been frank in his admissions of the offences and accepts that they constituted an abuse of power.
The Pre-Sentence Report prepared for court at the time stated that these incidents of assault began as a mixture of horseplay and mutual curiosity but progressed beyond this to being dominated by his own need for sexual satisfaction. At the time that the report was prepared, Mr Tarney expressed remorse and distress. He accepted that his victim suffered serious, perhaps permanent psychological harm.
Mr Tarney served his sentence at HMP Wymott, Leyland, Lancashire. He has no previous convictions. He was released on 12.12.95 and remained under the supervision of the Lancashire Probation Service until 27.7.96. His sentence expired on 12.3.97.
His supervision was completed satisfactorily. Throughout his licence he remained subject to our child protection procedures. Records indicate that Mr Tarney was felt to be inexperienced and naive at the time that the offences occurred. He accepted lame, took full responsibility and developed an understanding of the consequences both for himself and for his victim – of this type of abuse.
He does, however, remain an individual with sexual offences against children.
Mary Whyham
Assistant Chief Probation Officer, 26th May 2000”
The Visa Applicant admitted that T p142 was accurate although he said that the sexual relationship so involved was not “a continuous thing”.
24. It is opportune at this stage to note that the T Documents do not include any sentencing remarks by the presiding judge at the trial at which the Visa Applicant was convicted. Page 145 of the T-documents is a letter which indicates "Her Majesty's Courts Service dated 29 April 2005 advising that court transcripts and tapes will have been destroyed”.
25. Subsequent evidence in cross-examination of the Visa Applicant indicated that the Visa Applicant always felt an outsider in his step-father’s home. He found it hard to accept that he was adopted and questioned his mother as to why this was so. He was told about the adoption when he was nine and “things got worse after that”. He said that insofar as a statement made by him dated 10 September 2004 indicated that he found out about the adoption when he was 16, that statement was incorrect to this extent, and that he found out at a much earlier age.
26. The Visa Applicant said that the offences first came to light when his half-sister informed his mother and step-father and that this occurred some two years after he had moved out of their home in 1991.
27. The Visa Applicant is still in touch with his mother and step-father and one of his half-siblings but not the others. None of them attended his wedding. His evidence was that there was a falling out over his desire to be married in Australia.
28. Further evidence in cross-examination as to the landing card served only to reinforce my view that the Visa Applicant’s evidence as to the convictions being spent thus entitling him to tick the relevant box in the manner referred to previously in these reasons, cannot be accepted.
29. The Visa Applicant was asked in re-examination why he and Karen wish to settle in Australia. They have good jobs in England and where they have spent all of their lives. They are settled and have a family support system. His answer was that Australia offers a better and more democratic way of life.
30. Towards the end of his evidence the Visa Applicant said that he has in recent times obtained a plumber’s qualification; this was obtained at night on a part-time basis in Preston during a period of one year.
PART C - the evidence of the applicant
31. The Applicant is the father of the Karen Diprose and the father-in-law of the Visa Applicant. He and is a fitter and he lives in Wollongong. He was born, brought up and educated in the United Kingdom and emigrated, with his wife and (then) one daughter to Australia in 1968. He and his family returned to the United Kingdom in 1971; Karen was born in the United Kingdom in that year.
32. After two and half years in the United Kingdom and in 1973 the Applicant and his family returned to Australia. The Applicant and his wife were divorced in 1983 and his wife and the two daughters returned to the United Kingdom. This occurred in part because his wife wished to care for her diabetic mother.
33. It follows of course that Karen was born in the United Kingdom and has spent nearly all of her life in the United Kingdom. She works in the United Kingdom as a telecommunications surveyor having been trained as such by Telecom in the United Kingdom.
34. The Applicant has remarried but his former wife has not. He kept in touch with his daughters through the years after their return to the United Kingdom and in particular through a number of visits to that country,; he paid maintenance for them.
35. When he heard of the Visa Applicant’s criminal convictions, he, the Applicant, was at first upset but afterwards came to the conclusion that the Visa Applicant is not a sex offender at least in the sense that there might be a repetition of that conduct. He said “he was a lonely lad. He didn’t know who his father was. I think he took the easy way out”.
36. The Applicant said that the Visa Applicant and his wife wish to live in Australia for a number of reasons and including climate and because “this is a better country”. He said that Karen’s mother favours their move to Australia.
37. The Applicant said that his son-in-law has changed his name by deed poll back to its original form. He noted also that he had been informed that the judge at the trial remarked that the case should never have been brought to court and moreover, that the sentence imposed was the minimum which could have been imposed. This evidence, very much of a hearsay nature, is of dubious validity. There were a number of sentences and not one, and the comparatively short duration of the Visa Applicant’s incarceration is due to the fact that the sentences ran concurrently. The Applicant said, as I noted previously, that the victim is a disturbed young woman.
38. The evidence of the Applicant was of relatively little significance except for one aspect and that is that he so completely accepts his son-in-law without reservation and despite the criminal history to which I have referred. It must be said though that there was a strong element of special pleading in the Applicant’s evidence. His contact with his own daughter and the Visa Applicant has not been extensive and he plainly wishes to put the best possible slant on the Visa Applicant’s past. That is not to say that I do not believe the Applicant; I note merely that his evidence must be taken with a degree of reserve.
PART D - the evidence of mr peter diprose
39. Mr Peter Diprose lives in Victoria; he is involved in water recovery and utilisation. He has an engineering background having served for a number of years in the United Kingdom in the Royal Engineers Corp and where he attained the rank of a non-commissioned officer.
40. When Mr Diprose emigrated to Australia in 1989 he left behind two former wives and a child by each. The Visa Applicant is the son of his first wife Erica and who is now Erica Tarney.
41. I do not think it necessary for me to go into detail as to Mr Diprose’ somewhat involved marital career. I accept however that the fact that he was in the army and that his career involved constant travel, was a significant contributing factor.
42. After his divorce from Erica, Mr Diprose supported the Visa Applicant for about three years. When his ex-wife Erica married Mr Tarney, he consented to Mr Tarney adopting his son. He said that it seemed like best solution at the time.
43. Contact with the Visa Applicant was resumed years later and shortly before Mr Diprose left for Australia. It was the Visa Applicant who found him, his natural father, after making enquiries. The Visa Applicant wanted to accompany him to Australia but his mother refused her consent.
44. Contact since then has been maintained through visits to the United Kingdom and letters. There was also of course the visit in 1999.
45. Mr Diprose said as to the convictions that his first reaction was “shock horror”. He said that he got over it by reviewing the evidence and said that sometimes “(word deleted) happens”. (The Tribunal does not know what evidence is referred to; as noted previously no sentencing remarks or comments were available.) Mr Diprose referred to the landing card incident as a genuine error and said that it was not contrived. He said also that it was a decision made in error.
46. The evidence of Mr Diprose and the evidence of the Applicant are comparable in many respects. Both are from the United Kingdom; both were divorced and both have had comparatively little contact with their respective children. Both were able without apparent difficulty to treat the convictions in a manner which does not properly reflect the nature of the offences involved or the damage to the victim.
47. I would not wish to give the impression that I do not believe Mr Diprose. On the contrary, his evidence was truthful (if biased),and he too was putting the best possible slant on matters. Mr Diprose was impressive for another reason. He handled the Applicant’s case with considerable skill and ability. I was particularly impressed by his research into case law, and which is referred to later in these reasons.
PART E - the other evidence
48. A number of people gave references favourable to the Visa Applicant. They were not required for cross-examination and their references can be accepted. Many but by no means all, were by persons related to the Visa Applicant in one way or another. However, they are nearly all unanimous in their reference to the convictions and their acceptance of the Visa Applicant as a decent person despite the convictions. Mr Eteuati on behalf of the Respondent, in closing submissions queried the worth of some of the references on the basis that they, ostensibly by unrelated persons, referred to him as being akin to a member of their own (respective) families. I do not think that those particular statements can be interpreted adversely in the fashion to which Mr Eteuati referred, although the references are in many respects (in general terms) biased and the weight of at least some of them must of necessity be limited. Of the various references included in Exhibit A1, those by Nicola Urey, a school teacher and Alan Mattin, a Logistics Team Leader (and his wife) are quoted in full in these reasons as follows:
“Statement dated 28 November 2005 provided by Mrs Nicola Urey
To Whom It May Concern:
My name is Nicola Urey and I am a primary school teacher at Deepdale Junior School, Preston and have been there since 1998. I am writing this letter on behalf of Tony Diprose.
I have had the pleasure of knowing Tony for the last 15 years and regard him as one of my dearest friends who has also become a very close friend of my family. My husband and I have become extremely close to both Tony and his wife Karen and spend a great deal of time in their company aswell (sic) as enjoying holidays together. Tony is a kind, considerate, funny yet sensitive man, who I am fortunate to have as a friend and as a role model to my young son.
Tony and I met through my older brother and we became friends instantly. It was a few years later when Tony served a prison sentence and throughout this time I kept in constant touch with Tony and fully supported him as I never doubted his open, honest and caring nature. On his release Tony showed he was determined to put the past behind him and with the support of his friends and family focus on his future. He has shown great strength of character and has moved forward enormously, he is a well respected individual who can be relied upon and has always been there to support others.
Tony is in full time employment and has been since his release, he is reliable and hardworking and has made a success of his chosen occupation. He is happily married to his wife Karen and is surrounded by a large circle of family and friends. His and our lives are due to be further enriched by the safe arrival of his twin babies.
If you would like to discuss the statement further please no not hesitate to contact me at the above address.
Statement dated 30 November 2005 provided by Alan Mattin and Susan Mattin
To whom it may concern
My name is Alan Mattin, I am resident at 224 Cop Lane, Penwortham, Preston. My job title is Logistics Team Leader at BAE SYSTEMS. My wife of 34 years is Susan, who is a Laboratory Technician at Penwortham Girls High School.
We have lived in Penwortham since 1979 and have known Tony Diprose for fifteen years as a friend of our son Lee and daughter Nicola. During these 15 years we have found Tony open and honest about his prison sentence. He is extremely hard working and conscientious husband to Karen. Both Tony and Karen are considered by myself and Susan as part of the family rather than just friends.
We are happy to be given this opportunity to write a reference for Tony as we have the utmost respect for him and the way he has become a valued member of our local community.
Yours Truthfully”
PART F - analysis of the evidence
49. I deal firstly with the sex offences. They occurred a long time ago at a time when the Visa Applicant was at least at first very young. That is not to say that the nature of the offences can be regarded with anything other than horror. The victim was when the relationship started with seven years old; it is unnecessary to say anything more. No one would regard the offences as anything other than very serious indeed. I refer in this context also, and apart from any other considerations to clause 2.6 (and particularly clause 2.6 (d)) of Direction 21 referred to in the next succeeding Part of these reasons.
50. But there are aspects which even if they do not exculpate the Visa Applicant, do have a mitigating effect. The Visa Applicant was lonely and, so he said, an outsider. His relationship with his step-father was not good. He did not seek to excuse himself; he pleaded guilty and accepted and served his sentence. See in this context T 142 quoted previously in these reasons. I do not think (again as set out previously) that it would be at all apposite to describe the Visa Applicant as a pedophile. I accept that a repetition of this type of offence is unlikely. . Nor do I think that it is likely that he will commit other offences. His career since his release from jail has been commendable. It cannot have been easy to make his way back in the face of convictions of this nature. To his credit he is earning significant amounts in responsible employment. He is clearly a man of some considerable ability and versatility. The references to which I have referred do deserve some credence.
51. I do not accept the Visa Applicant’s evidence as regards the landing card. I think that the balance of probabilities favour the proposition that his answer was untrue. The conflicted evidence as to a spent conviction cannot be accepted. At the same time I am not at all sure that a prosecution under section 234 of the Migration Act 1958 (“the Act”) would succeed. A successful prosecution would require proof, not on the balance of probabilities, but on the basis that there was no reasonable doubt. A court might accept that the spent conviction evidence constituted reasonable doubt. But if one asks oneself whether a section 234 prosecution is likely or if it is brought would result in a custodial sentence or even a fine (other than a nominal fine) the answer must in all the circumstances be in the negative.
52. Further as regards the landing card answer, there was no intent to deceive in the sense that the Visa Applicant was seeking to achieve residence in Australia. The probabilities favour the proposition that when the landing card was presented to the Visa Applicant he and Karen appreciated the likely consequences of a truthful answer and decided to pin their hopes on the spent conviction answer. Evidence to this effect would have been more impressive, as would evidence which did not seek to lay the blame on the travel agent. It is ludicrous to suggest that travel agents are obliged to give their clients warnings that they must disclose their criminal convictions.
53. All in all the evidence before me was (subject to some reservations expressed in these reasons) credible.
PART G - direction - visa refusal and cancellation under section 501 – No 21 (“direction 21”)
54. That the Visa Applicant fails the character test is of course clear; this is so because he was convicted to a term of imprisonment in excess of the statutory minimum term. It is thus incumbent upon me to consider the discretion contained in Part 2 of Direction 21.
55. In this Part G references to numbered clauses should be construed as references to numbered clauses in Direction 21.
56. The primary considerations are contained in clause 2.3 which reads as follows:
“…
PRIMARY CONSIDERATIONS
2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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 a child or children and the person under consideration, the best interests of the child or children.
…”
57. Clause 2.3 must be read in conjunction with clause 2.5 which reads as follows:
“…
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(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 or discourage similar conduct (general deterrence).
…”
58. I do not think that the Visa Applicant presents any danger at all to the Australian community.
59. I would assess the prospects of recidivism as between very low and nil.
60. Deterrence is always a difficult aspect because there is no empirical evidence as to whether persons are deterred by decisions of this Tribunal. It is often said that to grant a visa in given circumstances would send entirely the wrong message. In this instance the facts are of such a nature that it is doubtful whether deterrence is a factor at all. Mr Diprose contended that in the cases cited by him; Re Tunzelman and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 528, Re Kelly Margaret Best and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 348, Re Kevin Marion Dunbar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 49 and Re Hall and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 834, the relevant visa applicants were, so he contended, all sex offenders to a greater extent than was the case with the Visa Applicant. As to whether Mr Diprose’s contentions were altogether correct is debatable; for example the conduct of the offender in Tunzelman may not have been as bad as that of the Visa Applicant; the other cases cited were perhaps rather more to the point but I agree that all four cases were at the least relevant.
61. As to clause 2.12, the expectations of the Australian community might well be divided. There would I believe, be a significant section of the community who would take the view that a person who committed offences of this nature should never obtain admission to Australia. But persons with knowledge of all of the facts would I believe, take a different view. There is abundant authority to the effect that the discretion should be exercised compassionately. I again note that I do not regard the offences in question with anything other than repugnance. It is hard not to feel for the victim. But all of this occurred a long time ago and since then the Visa Applicant has never been guilty of any other crime and has achieved a career, a wife and a family, and all in circumstances such that a recurrence is unlikely. . To the extent that rehabilitation is a relevant factor in these particular circumstances, the Visa Applicant has achieved it.
62. As to clause 2.17 the only possible hardship sufferers are the two fathers and Karen. The degree of hardship as regards the two fathers must be very low indeed; they have lived for many years away from their respective children and there is no reason why contact through trips, post, telephone and the like should not continue henceforth in the manner which has applied in the past. Hardship to Karen falls away for similar reasons; she has lived virtually all of her life in the United Kingdom. She has been educated and trained there. She has suitable employment and family support in the United Kingdom. There is in fact no real hardship so far as she is concerned.
63. The Visa Applicant said that he and his family wish to live in Australia because it offers a better life. He referred to climate and the fact that the lifestyle is easier. There were references in other evidence to Australia being more secure and there being less class consciousness. In all of the circumstances, these factors are of very limited, if any, relevance.
64. I do not discount the landing card evidence and the fact that there was a breach of migration law; breaches of migration law are always serious. But the circumstances are such that this particular breach need not be taken too seriously.
65. When one analyses the various considerations under Part 2 of Direction 21, one inevitable arrives at a group of negatives. There is no real hardship in refusal to anyone. At the same time there are no significant primary or other considerations favouring refusal.
66. In the circumstances the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Act should be exercised in favour of Anthony John Diprose Tarney.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: Associate
Date of Hearing 23 February 2006
Date of Decision 9 March 2006
Representative for the Applicant Mr P Diprose
Solicitor for the Respondent Mr T Eteuati, Clayton Utz
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