and and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 422

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 422

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5399

GENERAL ADMINISTRATIVE  DIVISION		)
Re		APPLICANT

Applicant

And  MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 8 June 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – refusal of visa on character grounds – previous convictions for sexual offences – application brought by visa applicant’s wife – failure to declare convictions when entering Australia – parole violation through travel – effect of disruption in marriage – decision affirmed.

Migration Act 1958 (Cth) ss 499, 500, 501

REASONS FOR DECISION

8 June 2010  Senior Member Bernard J McCabe

1. The applicant is an Australian citizen who has migrated from New Zealand. She left her husband behind although they remain married. She wants him to join her in Australia. But there is a problem: Mr D, the applicant’s husband, was convicted of serious sexual offences in New Zealand in 1998. He was sent to prison. The Minister has refused to issue a visa to Mr D on character grounds under s 501 of the Migration Act 1958 (Cth) (“the Act”). The applicant has asked the Tribunal to reconsider that decision.

2. Because the sexual offences in question were committed against minors, I will not the use the name of the applicant or her husband in these reasons to avoid any possibility of the victims being identified. I have also directed that the contents of the Tribunal’s file not be published to any person apart from the applicant, the respondent or their legal advisors pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). I have also ordered that the names of the applicant and her husband or the names of the witnesses not be published to any person apart from the applicant, the respondent and their legal advisers.

the background

3.      The applicant and her husband have been married for nearly 40 years. She is approaching her 65^th birthday. They lived in New Zealand for most of their lives. Mr D was a busy and successful builder who had previously served in the Army. The applicant said Mr D played a prominent role in the local community and did extensive charity work. He was also involved in veterans’ groups. The material in Exhibit 1 and the references supplied by the applicant speak to his standing in the community.

4.      Mr D and his wife did not have children of their own. They were unable to adopt within New Zealand but in 1990 they arranged to adopt four children from South America.

5.      Between 1991 and 1995, Mr D had a sexual relationship with the older of his two adoptive teenage daughters. In 1994, he began to assault his second daughter. He was subsequently convicted of two charges of unlawful sexual penetration and two charges of rape. He was sentenced to a total of nine years in gaol. The whole dreadful story is summarised in the sentencing judge’s remarks in Exhibit 1. His Honour referred to the systematic nature of the abuse, the abuse of trust, the impact on the victims and the lengthy duration of the offending.

6.      The applicant stood by her husband while he was in gaol. She said it was an awful time. She was shunned by many in the local community. People threw stones at the family home. But she continued visiting her husband. Meanwhile, she says her health was deteriorating because of the stress and because she suffers from severe asthma and arthritis.

7.      Before her husband was released, the applicant consulted with her extended family and it was decided she would move to Australia to improve her health. She said in evidence that the cold plays havoc with her asthma. Her doctor said that moving to a warmer climate would be of significant benefit. She was attending doctors regularly while she lived in New Zealand and she was occasionally admitted to hospital.

8.      I accept the applicant had a genuine motivation for moving to Australia. Quite apart from the climate and its beneficial impact on her health, she has family in Australia that live near her home. She was undoubtedly glad to be removed from the stress and social isolation that she experienced in New Zealand. But she wants her husband with her. They have been married a long time, and she misses him. He is also able to help her with the extensive renovations to their house in this country. She explained that they bought the house in anticipation that he would be able to renovate it at low cost.

9.      Mr D was released on parole in 2004. He quickly obtained work and attended a rehabilitation program conducted by an organisation called SAFE. A report from the program provider said Mr D had completed the program over about a year and developed insight into his behaviour and an awareness of the impact of his conduct on his victims. The program provider noted that offenders who completed these programs had a very low recidivism rate. It added:

“sexual offenders have low rates of re-offending compared with other criminal offences and recidivism is also known to decline with age.”

10.     There is no suggestion that Mr D has committed other sex crimes since he completed the program, but sadly that was not the end of his offending. Mr D entered Australia on eight occasions between 2005 and 2007 without declaring his convictions. That is a serious breach of this country’s migration laws. He stayed for relatively short periods of up to a month on each occasion. He spent the time here with his wife.

11.     As it happens, Mr D was not just breaking Australian law when he entered this country. He had not told the parole authorities in New Zealand of his overseas travels. When they received a tip-off in 2006, he was arrested and sent back to prison. He served a further six months of his sentence before being released. He says he is not clear why he was in trouble: he claims he did not understand that it was a condition of his parole that he remain in New Zealand. He admitted that he did not mention his travels to his parole officers during any of his regular appointments. I think he knew his travels were likely to be a problem if they came to light. He certainly understood that lying to Australian immigration officials about his prior convictions was wrong. He said he did it anyway because he assumed he would otherwise be prevented from seeing his wife.

12.     Mr D sought to visit Australia again in 2007 after he was released from gaol. By that time, he was free to leave New Zealand. He said his wife had called while he was in Fiji on holiday. She was in a state of distress. He arranged to fly home via Australia so that he could visit her. He was turned back at the Australian border by immigration officials who had become aware of his record.

13. Mr D subsequently applied for a visa on the basis that he was a partner of an Australian citizen. The Minister decided to refuse that application pursuant to s 501 of the Act. That refusal is now before the Tribunal pursuant to s 500.

The legal framework

14. Section 501 permits the Minister to cancel or refuse a visa if the individual does not satisfy the character test set out in s 501(6). Mr D does not satisfy that test because he has been sentenced to a lengthy period of imprisonment. The question then arises whether the Minister (or the Tribunal on review) should exercise the discretion to cancel.

15.     The decision-maker is obliged to have regard to a ministerial direction which explains the factors that must be taken into account when exercising the discretion. I was provided with a copy of Direction No 41 – Visa refusal and cancellation under s 501 (“the Direction”). The Direction is binding on me by virtue of s 499. The Direction also sets out the weight to be accorded to various factors. I will deal with the single primary consideration which is relevant to this case before turning to the other considerations.

Primary considerations

16.     The single primary consideration that is relevant in this case is:

“Protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.”

17.     In my deliberations on this question, paragraph 10.1 of the Direction says that I must look to (a) the seriousness and nature of the relevant conduct and (b) the risk that the conduct may be repeated.

18.     There is no question but that Mr D’s offences were very serious. Sexual offences committed against minors and other vulnerable persons will always be of particular concern, even where they do not involve violence. The sentencing remarks of the trial judge (which included quotes from victim impact statements) and the lengthy custodial sentence are an indication of the gravity of the crimes Mr D committed.

19.     While the seriousness of the conduct is obvious, the risk that the conduct may be repeated is less clear. There is no evidence that Mr D has offended again since he was released from prison, although that was not long ago. I have already noted Mr D completed a treatment program designed for sex offenders. The evidence before me suggests there is a low recidivism rate amongst offenders who complete a course of this nature. I note that the rate of re-offending is even lower amongst older offenders. Mr D falls into that category. He is nearly 65 years old.

20.     I should also take into account the circumstances in which the offences were committed. Mr D is not what might be described as a “stranger danger” offender who trawled the internet or preyed on children in the neighbourhood. There is no evidence to suggest he presents (or ever presented) a risk to the wider community. Like most child sex offenders, his offences were committed in the family home and the victims were children in his care. His age and family circumstances suggest he is unlikely to be in that position again.

21.     The applicant and Mr D insist he has insight into his offending. The evidence on this point is equivocal. For example, in a statement dated 24 January 2009 that was provided in support of his application for a visa he said “I still deny” he had sex with his two adopted daughters. At the hearing, he acknowledged what he had done although he tended to characterise his behaviour as “stupid” or “foolish” rather than wicked. It was also clear from his oral evidence that he was unhappy that the offences were described as rapes, as he said he understood rape to involve force or violence. This is all troubling because a lack of insight suggests an increase in the risk of re-offending. Mr D did add, however, that he was aware of the consequences of re-offending and had no intention of doing anything that would see him returned to gaol.

22.     The applicant provided a number of references from friends and associates who attested to Mr D’s good character. It was apparent on the face of most of the references that the referees were aware of Mr D’s criminal history. Many of them opined that the offence was out of character. The references, taken as a whole, provide some reassurance although I note the Direction points out references and reports from independent persons are of more assistance. I also note that letters from the teenage victims of abuse were included in the bundle. The letters suggest affection for Mr D. I do not think the letters are of any assistance. At best, they indicate some sort of reconciliation. That tells me nothing about the likelihood of Mr D re-offending.

23.     The evidence that Mr D had repeatedly lied to immigration authorities in Australia (and, I infer, behaved disingenuously towards the parole authorities in New Zealand) when he entered this country on eight occasions following his conviction is particularly worrying. Deliberately and repeatedly breaching the immigration laws is a serious matter that reflects adversely on Mr D’s claim to be a reformed and law-abiding citizen. It certainly reflects poorly on his credit. The Direction makes it clear that Mr D’s general conduct and his total criminal history are “highly relevant” to the decision I must make. Evidence of breaches of parole is also relevant in this regard. I doubt that a pattern of deliberately breaching immigration laws suggests this applicant is more likely to commit further sex offences, but it does suggest he is prepared to break the law when it suits him to do so. He cannot be described as a law-abiding citizen.

24.     On balance, I am satisfied there is a relatively low risk that Mr D will commit further sex offences, and there is no reason to assume he will commit crimes of violence. I acknowledge that the consequences of a child sex offence are particularly serious, which suggests a more risk-averse approach is appropriate. I have much less confidence in his capacity to abide by other laws.

25.     The matters that I am required to consider as primary considerations suggest Mr D should not be permitted to enter Australia.

Other considerations

26. The Direction permits me to have regard to other considerations which include the matters set out in clause [11].

27.     I will say at once that I am satisfied the evidence establishes the applicant and her husband have a genuine, long-standing marital relationship that has persisted despite the disastrous consequences of Mr D’s conduct. The applicant is an Australian citizen. I accept the relationship will be significantly disrupted if Mr D is not permitted to come to Australia.

28.     The respondent suggested the applicant was free to return to New Zealand if she wished to be with her husband. The applicant says otherwise. I accept that is an unattractive alternative in the circumstances of this case. The applicant has significant health problems that are exacerbated by the climate in New Zealand. She says she falls ill when she goes back for any length of time. She visits once or twice a year, preferably in summer. She says she does not stay for long because she does not want to fall ill. Her treatment regime is less demanding in this country because of the more congenial climate. If her husband were here, he could help care for her, and he could also take care of the renovations to their home. It was also clear that the applicant regards life in New Zealand as a stressful experience in light of what her husband has done. She has family in this country: her brother lives nearby, and she has a good relationship with her nieces. Those relationships would be disrupted if she were to return to live in New Zealand.

29.     I have already noted Mr D is about 65 years of age. He has little family and a small number of friends remaining behind in New Zealand. He is not a stranger to that country, obviously, but it would be no hardship to leave it behind. On the other hand, his relationship with his wife and her family would certainly be disrupted if he were not permitted to come to Australia.

30.     On balance, the “other considerations” weigh in favour of permitting Mr D to live in Australia with his wife. I am satisfied she will experience some hardship if that does not occur.

Conclusion

31.     I have great sympathy for the applicant. She is another victim of the wicked things her husband did to their daughters. But while I am conscious of the hardship that she is likely to experience, I do not think that hardship and the other matters described as “other considerations” offset the matters referred to as “primary considerations”, which weigh against granting Mr D a visa. The decision under review must therefore be affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ......................[Sgd].....................................................
  Patrick MacDonald, Associate

Dates of Hearing  6 May 2010 
  3 June 2010
Date of Decision  8 June 2010
Applicant  Self-represented

Solicitor for the Respondent     Ms A Tibell