Barratt and Minister for Immigration and Multicultural Affairs - [2000] AATA 1096

DECISION AND REASONS FOR DECISION [2000] AATA 1096

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1129

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARGARET BARRATT
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal JUSTICE O'CONNOR, PRESIDENT

Date22 November 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review

..............................................
Justice O'Connor, President

IMMIGRATION & CITIZENSHIP - class tr subclass 676 tourist (short stay) visa refused – "the person's past and present criminal conduct" ground for failure of character test

Migration Act 1958 ss 501(6)

REASONS FOR DECISION
(EX TEMPORE)

22 November 2000 JUSTICE O'CONNOR, PRESIDENT

This is an application by Margaret Barratt to have reviewed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to section 501 of the Migration Act 1958(Cth) (the Act), to refuse to grant a Class TR Subclass 676 Tourist (Short Stay) visa to her son, Julian Nicholas Downs, on the basis of the failure to pass the character test, the particular ground being s 501(6)(c)(i) of the Act, "the person's past and present criminal conduct".
Background
Criminal Conduct
Mr Downs, who is a New Zealand citizen, was convicted and sentenced to imprisonment on 18 May 1999 as follows:
-   Cultivate cannabis       6 months
-   Product cannabis oil     8 months (as result of an appeal)
-   Possession cannabis oil         1 month (as result of an appeal)

The periods of imprisonment were suspended for a period of 1 year and Mr Downs was ordered to undertake non-residential periodic detention and supervision.

Mr Downs lodged an application for a subclass 676 Tourist (Short Stay) visa on 7 August 2000. In support of his application, Mr Downs provided:
-          a covering letter explaining his circumstances now and at the time of his convictions;
-          eight character references attesting to his good character;
-          a letter from the Alcohol and Drug service outlining his drug problem;
-          a copy of a wedding invitation;
-          a copy of PADI dive master certificate.
The Minister's delegate, considering all of those matters, came to the view that the temporary visa should not be granted and the appeal is now made to me.
The first step in deciding whether this visa should be granted is to look at the provisions of s 501(6)(c) and come to the view as to whether the person concerned does have, as a result of their past and present criminal conduct, a good character. In other words, it is the passing or failing of the character test. There is, even if one comes to the view that the person is not at the present of good character, a discretion not to refuse to grant the visa but I will deal with that later.
I will deal with the question of the discretion once I have dealt with the matter of the character.
Character
A lot of submissions have been made and argument put by Mr Barratt, the stepfather of the applicant for the visa, to perhaps suggest, firstly, that the nature of the convictions are not as serious as they appear and that when one looks at the whole of the circumstances of the way in which the offence occurred and the way in which it was handled, that one would not come to the conclusion that Mr Downs is not a person of good character. I think that was also reflected by some of the remarks made by his mother, Mrs Barratt.
I am not able to agree with those submissions. In my view the matters of cultivation, production and possession of cannabis for which this young man was convicted are serious and I have come to the view and find that he is not of good character on account of his past and present criminal conduct under the Act. There are some mitigating circumstances in relation to parole reports and the like but the original sentencing judge spoke in quite a negative way about the circumstances of the crime and it is not a clear-cut situation that seems to suggest that it is anything other than deliberate offences in circumstances where certainly the authorities in New Zealand thought they were very serious matters.
Discretion
Having found that Mr Downs is not a person of good character, it then remains to see whether in deciding whether not to refuse the entry visa, there could be some other discretionary matters which could be taken into account.
The Minister's policy document, which is Direction No 17, provides that in making a decision whether to exercise a discretion in this matter there must be three primary considerations and those three considerations are:

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

The third of these, I think the parties would agree is not in issue here, particularly since young man is over the age of 18 years. But in looking at the protection of the Australian community and the members of the community and the expectations of the Australian community, I have taken into account the seriousness of the conduct and the nature of the conduct and I also have taken into account the likelihood that the conduct may be repeated, including any risk of recidivism.

Protection of the Australian Community

I found that the conduct was serious and in particular the drug offences, which are referred to in the Minister's policy document, are of a class and kind that must be considered among the most serious that need to be considered. There is compelling evidence in relation to the rehabilitation of this applicant to the extent that he is presently in a job. His employer has seen fit to give him a reference. It appears that he is not either smoking marijuana or tobacco and he has been working in a place apart from the environment in which the offences occurred. It has been put on his behalf that this then would lead to the conclusion that there is little likelihood that the conduct may be repeated. I think Mrs Barratt, his mother, has indicated that he cannot smoke, that he is an addict who has to give up and that he has given up for a substantial period of time and one would expect that that would continue for the future.
It has been put by the respondent that, while taking that fully into account and I have, one has only had a period since May of this year in which to assess the likelihood of recidivism and it is reasonably soon since then to be absolutely sure that there is no likelihood of any repeat of the conduct. But I have weighed the current situation in terms of exercising this discretion as favourable to the applicant.
However, in relation to the issue of general deterrence, it was put on behalf of the respondent that the refusal of Mr Downs' visa application will send a clear message to other members of the community that conduct similar to that which he engaged in is not acceptable to the Australian community and non-citizens can expect to have their visa applications refused if they engage in similar conduct.
I am of the view that a refusal in this case would send that clear message to other members of the community and that I would need to be convinced, and I will deal with these other issues that may or may not convince me, that the other factors which were contrary to this deterrence existed, for an exception to be made in these circumstances because I am of the view and find that to refuse this visa would have the effect of general deterrence in respect of matter.
Expectations of the Australian Community
In relation to the expectations of the Australian community, a great many things were said by Mr Barratt as the primary person conducting the case but also Mrs Barratt, which seemed to be suggesting that whether the Australian community is hypocritical or whether there is a widespread acceptance of the conduct for which Mr Downs was convicted, is that there is no problem with the Australian community or little problem that should prevent the granting of this particular visa. I do not agree with those submissions.
The Minister's policy, and he is the person responsible as an elected official for the articulation of the expectations of the Australian community, and the Minister's policy document certainly suggests that the Australian community would expect that persons convicted of the crimes that Mr Downs was convicted of would not be granted a visa.
Those are the primary matters and it is in the area of recidivism that I think one could look most favourably at the applicant's submissions but in respect of the other matters I think that my conclusions are not so favourable.
There were quite a number of other considerations put under the general heading of compassion in respect of this matter. As I pointed out, the initial application was made in order to allow Mr Downs to attend a family wedding. He has significant family ties in Australia. His mother, his brothers and his stepfather are resident in Australia and they are clearly, from what I hear today, very concerned about him and they wish to be able to see him. It is a fairly obvious point that they are not restricted from visiting him in New Zealand until he can demonstrate that he is of good character and that his rehabilitation is in permanent shape.
He is in a de facto relationship with an eligible New Zealand citizen, eligible to come to this country and has a small child. He has previously travelled to Australia and resided here for a period of time and has complied with his visa requirements and I have no doubt that he has conducted himself appropriately since his conviction and have looked even in this area at that particular factor. But the other factors that seem to me to be missing from this submission about compassion is the presentation that there is a degree of hardship which would be caused to immediate family members lawfully resident in Australia, including Australians citizens, by refusing this visa.
The evidence is, and certainly there does not seem to be any contest about this, that the need for an immediate visa and the arrangements for a week's leave from his employment in order to come to Australia, which is sought in respect of this temporary visa, is related to the fact that tickets which are non-refundable were purchased prior to the application being considered by the Minister's delegate and there is a wish by Mr and Mrs Barratt not to lose the value of the airfares, which they will do if they are not - certainly in relation to Mr Downs, if it is not used by 6 December. The ticket that has been purchased for his partner, of course, could be used and the grandchild could also travel to Australia.
Mrs Barratt made a comment about, and I put this in summary, how many eighty dollars do we have to expend before we are able to get this visa? So the financial concerns about losing the cost of the tickets and not being able to be told when the authorities will be satisfied as to when the discretion should be exercised in their favour seems to be the basis of any of these other considerations. It is a temporary visa and there is evidence of rehabilitation and recent good conduct but there is no other evidence in relation to the other factors which one might use to explain to the Australian community as to why someone who has been found not to be of good character because of the commission of these offences should have a discretion exercised in their favour.
I can find no basis for that particular countervailing factor which would lead me to the conclusion that the refusal should not be made. When asking the applicant about the purpose of entry, what I heard from them, and in particular Mrs Barratt, were the use of expressions about it being unfair, it is not right, it is not accepted, we are not people who are involved in criminal activity. She referred to others as hardened criminals. The fact is, in my view, the offences that Mrs Barratt's son has been convicted of are serious and do fit into the category of the sort of offences that are of concern to the Australian community as it is expressed by the Minister.
I do not think the financial detriment or pain that is created by not being able to use the airfare is sufficient to weigh that balancing process in favour of granting the visa at this stage. It is not a matter for me to come to a view as to when or how the effects of this view about the character of Mr Downs will be outweighed by other mitigating factors and allow him to enter Australia but he does not have a right to do so and at present the countervailing factors, in my view, do not outweigh the other considerations to which I have to give primary weight.
Decision
It is most unfortunate in the sense that I can fully understand certainly the emotional environment in which Mrs Barratt has put the matters that she has but at this stage I am not convinced that the refusal of the visa should not be made and it has to be a question of, I suppose, overturning those primary considerations. Therefore, in this case I affirm the decision of the Minister.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Justice D F O'Connor, President.
Signed:         .....................................................................................
  Associate
Date of Hearing  22 November 2000
Date of Decision  22 November 2000
Representative for the Applicant   Mr R Barratt
Counsel for the Respondent    Ms R Hearn-Mackinnon