Basic and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 590

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2004/1151

GENERAL ADMINISTRATIVE DIVISION		)
Re		EMMA BASIC

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  The Hon C R Wright QC (Deputy President)

Date10 June 2005

Place Melbourne   

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa applicant's visa application not be refused on character grounds.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration -  Prospective Marriage (Subclass 300) visa – whether of good character - visa applicant convicted of criminal offences – arriving in this country as a young child –  risk of recidivism – visa applicant has close ties with Australian family – discretion exercised.

Valanui and Minister for Immigration and Multicultural Affairs (1999) AATA 385

Migration Act 1958 –s501

REASONS FOR DECISION

10 June 2005  The Hon C R Wright QC (Deputy President)

Application to Review

1.      On 21 April 2004, Nabil Lui, the visa applicant, lodged an application for a Prospective Marriage (Subclass 300) visa.    The application was sponsored by his fiancée, Emma Basic, the review applicant.

2.      On 13 September 2004, the Minister’s delegate refused the visa application on character grounds pursuant to section 501(1) of the Migration  Act 1968 (“the Act”).

3.      On 6 October 2004 the review applicant lodged an application to review the delegate’s decision with the Administrative Appeals Tribunal.

4.      The application to review was heard in Melbourne on 14 April 2005.    The applicants were represented by Mr D Baker of counsel, the respondent was represented by Ms G Bennett.  Viva voce evidence was taken from both applicants, the review applicant’s mother Mary-Ellen Basic, her sister Rebecca, Grant Wayson, a school teacher, Stuart Graham, a former employer and Bernard Healey, a consultant psychiatrist.   The visa applicant’s evidence was taken by telephone link to Tonga where he is currently residing.   In addition  documentary was received and will be referred to as necessary during these reasons.

Background

5.      The visa applicant is 25 years old.   He came to Australia from Tonga with two of his brothers on 9 February 1984.   Apart from a short period from March 1987 to July 1988 when he returned to Tonga, he lived continuously in Australia from 1984 until he finally departed on 16 April 2004.   Since then he has remained living with his family in Tonga.   He speaks English but does speak the Tongan language.

His parents, both Tongan nationals by birth came to Australia in 1982.   His mother entered on a student visa to study hospital administration and was later joined by her husband who had been studying in Japan.   They were joined by their fourth son, 2 or 3 years later.   After several years of fruitless attempts to secure permanent residency in Australia, the visa applicant’s parents returned to Tonga late in 2003.   His brothers continue to reside in Australia.   Their residential status was not revealed by the evidence.

6.       His parents’ account of the visa applicant’s developmental progress is contained in Exhibit R1 (the T documents) at pp70-71.   The visa applicant’s version of this period of his life differs somewhat from theirs.   He complains of parental neglect and harsh discipline with resultant depression particularly after his father’s immigration detention for a period of 3 or 4 months when the visa applicant was a student in year 9 at the Northcote High School.   I think that Mr Lui was a firm disciplinarian and that both he and his wife were very hard workers in an effort to provide their children with a good and secure life in Australia.

Character

7.      Between October 1995 and December 2003, the visa applicant has had numerous appearances in, firstly, the Children’s Court and more recently the Magistrates and, County Court of Victoria for a variety of offences, involving violence, dishonesty and drug abuse.   He blames much of this misconduct on family tensions, racial discrimination and his poor choice of companions.   He professes sincere regret for his offending behaviour and says that since meeting the review applicant and coming under the positive influence of her family, particularly her mother, he has seen the error of his ways and has become a reformed character.

8.      Trite though these observations may sound there is a good deal of evidence which tends to support the visa applicant’s case.   He has also given and adduced evidence tending to show that he is currently living in harsh conditions in Tonga and has major difficulties in assimilating into the Tongan lifestyle and culture due to his having spent most of his formative years in Australia.   I will examine these matters shortly.

9.      The visa applicant’s history of offending is set out hereunder.

Court	Date	Offence/Charge	Result
1.	Preston Children	12.10.95	Spit from Vehicle	Adjn 12 mths $100 Good Behaviour Bond
2.	Preston Children	15.3.96	Assault, Resist and Hinder Police	Adjn to 14.3.97 $100 Good Behaviour Bond
3.	Ringwood Children	5.6.96	Affray Recklessly cause serious injury assault in company	Adjn to 14.5.97 $100 Good Behaviour Bond
4.	Preston Magistrates	5.5.97	Burglary, Theft, Possess restricted substance.   Theft from shop.   Fail to answer bail.	Community based order 12 months.  To perform 15 hours community work.  To submit to drug and alcohol testing.
5.	Broadmeadows Magistrates	24.5.98	Theft of motor vehicle Theft Wilfully damage property Fail to answer bail Breach of community based order.  State false name/address Breach re 5/5/97 Burglary, theft, theft from shop (shopsteal)	4 mths sentence suspended for 6 months. 3 mths concurrent. Sentence suspended for 6 months 2 mths concurrent.  Sentence suspended for 6 months 7 days on each charge concurrent. Sentence suspended for 6 months. Both charges convicted and fined aggregate $900 with other matters Breach of community based order. Order cancelled.  3 months on each charge concurrent and concurrent sentence suspended for 6 months.
6.	Broadmeadows Magistrates	24/03/98	Fail to answer bail Possess restricted substance	Breach of community based order, order cancelled, 7 days concurrent.   Sentence suspended for 6 months under s27 of Sentencing Act. Breach of community based order, order cancelled.  Convicted and fine aggregate $300 with other matters.
7.	Heidelberg Magistrates	14/4/99	Breach re 24/3/98 Burglary, theft, theft from Shop (Shopsteal) fail to answer bail, wilfully damage property , theft of motor vehicle. Resist Police or person assisting police. Drunk in a public place Breach of suspended sentence order. Fail to answer bail.	On each charge: No order is made as to the suspended sentence. Without conviction adjourned to 4/4/2000 To pay $250 to the Court Fund
8.	Melbourne County	10/04/00	Aggravated burglary	2 years imprisonment, non-parole period of 9 months, declare a period of 96 days have already been served by way of pre-sentence detention
9.	Melbourne County	28/5/01	Affray (Common law)	4 mths sentence suspended for 2 years.
10.	Frankston Magistrates	16/6/01	Go equipped to steal/cheat Careless Driving Unlicensed driving	1 month imprisonment concurrent. With conviction, fined an aggregate of $500
11,	Frankston Magistrates	16/6/01	Theft of motor vehicle Attempted theft of Motor vehicle	On each charge 4 mths imprisonment concurrent Licence cancelled and disqualified for 6 months.
12.	Dandenong Magistrates	30/7/01	Theft from shop (Shopsteal) Theft Attempted burglary Burglary Burglary Theft of Motor Vehicle Assault Police Resist Police Act prejudicial good order/Management Gaol Possess property being proceeds of crime Possess controlled weapon without excuse Attempted theft of a motor vehicle Go equipped to steal/cheat Possess prescribed drugs	On each charge 2 mth imprisonment. Concurrent sentence wholly suspended for 12 months. 2 mth imprisonment, concurrent sentence wholly suspended for 12 mths. 2 mths imprisonment, concurrent, wholly suspended for 12 months. 1 mth imprisonment, concurrent.  Sentence wholly suspended for 12 mths. Licence cancelled and disqualified for 1 mth On each charge 7 days imprisonment Concurrent sentence is wholly suspended for 12 months 1 month imprisonment concurrent.  Sentence is wholly suspended for 12 months 1 month imprisonment. Concurrent.  Sentence is wholly suspended for 12 months 1 month imprisonment. Concurrent.  Sentence is wholly suspended for 12 months.  Licence cancelled and disqualified for 1 month 7 days imprisonment. Concurrent.  Sentence wholly suspended for 12 months. With conviction, fined $100
13.	Melbourne Magistrates	21/8/01	Retention of stolen goods Use a false document to prejudice other Theft from shop (shopsteal) State false name when requested. Breach re 30/07/01 attempted theft of a motor vehicle Go equipped to steal/cheat	Aggregate 1 month Imprisonment. Concurrent on each charge. With conviction.  Adjourned to 21.12.2001 Breach of suspended sentence.  Sentence re-instated. 1 mth concurrent. Breach of suspended sentence.  Sentence re-instated.  7 days concurrent
14.	Dandenong Magistrates	12/02/02	Possess controlled weapon without excuse Use Drug of dependence (not named)	With conviction, fined an aggregate of $500. Forfeiture order made without consent order following property/s seized be forfeited and destroyed.   One knife With conviction fined an aggregate of $500
15.	Melbourne County	20/11/03	Breach re 28/5/01 Affray (Common law) Attempted to pervert the course of justice	Breach of suspended sentence, sentence re-instated – 4 months. 2 mths on each count concurrent and concurrent.  New total 9 Mths
16.	Melbourne Magistrates	01/12/03	Possess drug of dependence (not named) Theft from Shop (shopsteal) State false name when requested State false address when requested Wilfully damage property Possess property being proceeds of crime Go equipped to steal/cheat Contravene Section of Act Obtain Social Security Benefit not payable	Aggregate 5 months imprisonment.  Concurrent.  Sentence partially suspended for 12 months.  Effective total State term imposed is 3 mths effective total Federal term imposed is 3 mths. Aggregate 5 mths imprisonment.   Concurrent.  Sentence partially suspended for 12 months Aggregate 5 mths imprisonment.  Concurrent.  Sentence partially suspended term to be served is 3 mths for 12 mths 3 mths imprisonment 3 mths imprisonment

10.     This is a confronting list of offending conduct committed over a period of nearly 8 years.   Some of the crimes committed can only be regarded as very serious.

11.     However, without much doubt, the most serious offence committed by the visa applicant was that of aggravated burglary (Number 8 in the above list) which resulted in an immediate custodial sentence of 2 years imprisonment.   The circumstances of this offence were discussed by His Honour Judge Nixon in his sentencing remarks which appear at pp59 to 66 of Exhibit R1.   The visa applicant attributes his involvement in this crime to the overbearing and manipulative conduct of his co accused, a relative, who he says, forcibly administered a drug to him and then plied him with liquor before they both went to a house to retrieve monies which, it was believed, had been stolen by two of the occupants.   These two young men were bound and gagged and threatened with knives by both offenders.

12.     Whilst acknowledging responsibility for this criminal conduct as well as his previous and subsequent offences, the visa applicant has been at pains to diminish his own moral culpability for his part in the relevant misconduct on many occasions.  (See Exhibit R1 pp 295-307).   It is, however, obvious to me that his self portrayal as a socially and racially disadvantaged victim of circumstances can have only a limited ameliorative effect.   The evidence of Mr Grant Wayson, a teacher who knew him over a period of 3 or 4 years at Thornbury/Darebin College described him as a skilful and disciplined sportsman, well mannered and polite.    This assessment was similar to that given by Mr Stuart Graham, a former employer, who also mentioned that he was an excellent worker who could perform reliably and unsupervised.   Neither suggested that there were racial or social problems manifested by the visa applicant’s behaviour in their dealings with him.   Mr Wayson did mention that at school the visa applicant had been missing classes, but he initially attributed this to his not being academically committed.   Neither gave evidence suggestive of the visa applicant suffering from severe psychological disturbance or personality maladjustment.

13.     Pursuant to the provisions of s501(6)(a) and 7(c) of the Act, the visa applicant must fail the character test by virtue of his having been sentenced to a term of imprisonment in excess of 12 months in respect of the aggravated burglary which occurred on 16 May 1999.    In addition, it may be observed that the visa applicant’s past and present criminal conduct viewed collectively, would also support an adverse character assessment (see s501(6)9c)(i)) but it is unnecessary to make a specific finding as to this.   As the visa applicant has failed the character test it becomes necessary to consider whether or not the residual discretion to avoid the consequences of that failure should be exercised in the applicant’s favour.

Discretionary Issues

14.     For this purpose it is necessary (inter alia) to consider the Minister’s Direction No 21 dated 23 August 2001,  Part 2 of which provides guidance for decision-makers exercising such a discretion.   These directions are binding upon all decision-makers, including members of the AAT conducting a review of an original decision made under s501 of the Act.

15.     In the present case there are two primary considerations to be taken into account viz:

(a)the protection of the Australian community and members of the community; and

(b)the expectations of the Australian community.

16.     Pursuant to paragraph 2.5 of the Direction, the protection issue includes  three factors viz:

(a)      the seriousness and nature of the conduct under consideration;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism);

(c)the likelihood that visa refusal may prevent or discourage similar conduct by others (general deterrence).

17.     I will deal with each of these features as they relate to the present case.

Seriousness of the Conduct

18.     Paragraph 2.6 makes it plain that armed robbery is regarded by the Government as very serious.   Similar views are expressed regarding assault and other forms of violence against the person.   The visa applicant’s records contains several examples of such conduct.   Viewed globally the visa applicant has a bad history of offending extending over a very long period of time.   Paragraph 2.7 requires consideration of the extent of an applicant’s record and the repugnance of the crime.    In my opinion aggravated burglary involving home invasion and threats by use of a weapon is a highly repugnant crime.

Likelihood of Repetition

19.     The visa applicant has kept out of trouble since the completion of his last custodial sentence in 2003.   However he returned almost immediately thereafter to Tonga to a totally new environment so his long term improvement as a law abiding citizen in Australia has not been put to the test.   Paragraph 2.10 of the Direction suggests that a person’s previous general conduct and total criminal history are highly relevant in assessing the likelihood of the risk of recidivism, but the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make must also be taken into account.

20.     Evidence was given by the visa applicant that since returning to Tonga and finding that paid employment is hard, if not impossible to secure, he has taken on voluntary work driving a Red Cross bus, transporting handicapped children to and from school and for various activities.   He has shown interest and aptitude in developing sign language to enable him to communicate with his charges.

21.     He has been assessed by an experienced psychologist, Mr Bernard Healey as constituting a low risk of recidivism.   This view has been based substantially upon the beneficial effect which he sees as flowing from the influence of Mary-Ellen and Emma Basic upon the applicant.   Mr Healey consulted with the visa applicant at the Maribyrnong Detention Centre in March 2004 and prepared a comprehensive report (Exhibit R1 pp144-154).   Mr Healey also viewed the video tape address to the Tribunal (Exhibit A1) prepared by the visa applicant.    He also had a telephone interview with the visa applicant on 11 January 2005 and prepared a supplementary report dated 11 January 2005 which became Exhibit A4.

22.     He assessed the visa applicant as having no evidence of major psychological or emotional disorder, but detected vulnerability to substance abuse.   He assessed the major risk factors which could lead to re-offending as “increased stress, emotional turmoil, stress in relationship and vulnerability to substance abuse”.   He acknowledged the visa applicant’s apparent capacity to mask inner turmoil as being a factor which may cause difficulty for his support network members to realise that he may require help in the future.

23.     In assessing the element of risk of recidivism it is relevant to consider the relative immaturity of both applicants.    Mr Healey says that the visa applicant shows some immaturity, but both he and Mary-Ellen Basic assess Emma Basic, the review applicant, as being a mature young woman.   This is a glowing endorsement of a girl who is only 19 years of age, but despite her level headedness and her tenacity in attempting (not one but twice) to adapt to the daunting Tonga lifestyle which she and her mother graphically described, I entertain reservations about her future relationship with the visa applicant.    She has skills and qualifications as a beauty therapist, but he has no qualifications at all.   His employment prospects lie in the area of unskilled work or labouring jobs.   His immediate prospects would be good in these areas if he were to return to Australia.   Both Mr Stuart Graham and Mary-Ellen Basic are prepared to offer him paid work.   However there have already been some bad experiences in his relationship with Emma and were he to break up with her and lose the support provided by her and her mother, I think the risk of his re-offending would rise dramatically.

24.     I accept the evidence of Mr Healey and Mary-Ellen Basic in their enthusiastic endorsement of the visa applicant as a troubled young man who appears to have overcome early adversity, but I think their optimism must be tempered by these considerations.    In reaching this conclusion, I have not overlooked the highly supportive letter from Mr William DeCis dated 18 January 2005 (Exhibit A3).  Mr DeCis was in a managerial position in Port Philip Prison and later the Maribyrnong Immigration Detention Centre and he had contact with the visa applicant at both institutions.    Given his relationship with the visa applicant, his letter of support is of some considerable significance.

General Deterrence

25.     It has sometimes been suggested that individual cases of visa application rejection do not become generally known in the community, and are thus of limited deterrent value, but I subscribe to the view that a consistency in approach by decision-makers soon filters through to those persons who require permission to enter or stay in this country.    Knowledge that criminal or anti-social behaviour may jeopardise that prospect must surely act as a deterrent to such individuals in the same way that imprisonment and other penalties provide deterrence to the general population.   I would therefore assess the deterrent value of refusal in the present case as being far from insignificant.

Expectations of the Australian Community

26.     Paragraph 2.12 of the Direction points out, almost unnecessarily, that the community expects non-citizens to obey Australian laws whilst in this country.   The real issue under this heading is more aptly regarded as whether fair-minded citizens with intelligent knowledge and understanding of the relevant facts and issues would conclude that visa refusal should be the appropriate outcome in an individual case.   This issue, I think, should be left until the “other considerations” referred to in paragraph 2.17 of the Direction have been discussed.

Other Considerations

27.     The Government’s view, expressed in paragraph 2.17 is that these issues, which are principally centred on hardship and disruption to established relationships should “be taken into account, but that generally they (should) be given less individual weight than that given to the primary considerations”.   I have previously expressed the opinion that this policy statement does not impose a fetter upon the exercise of a broad discretion taking account of all relevant circumstances.

28.     There are two strong arguments that to refuse a visa in this case would be unfair and unjust to the visa applicant.    The first argument was well put by the visa applicant’s counsel at page 64 of the Transcript where he said:

“Mr Lui if he is refused a visa will be in a country which, to all intents and purposes, is an alien country to him.   It is not sufficient to say he was born there.   He has grown up in Australia, he has attended school here.   He has behaved and misbehaved here. He has formed his romantic relationship here, his parents lived here until one year ago.  He has brothers living here.   This is his home or this is where his home should be, it is not in some country where the living conditions are third world and the prospects are third world.”

29.     The second argument is as follows.   The visa applicant is assured of an exceptionally strong support structure waiting for him in Australia if he is allowed to return.   He has a loving de facto wife whom he intends to marry in July 2005.   he has the respect and friendship of her elder sister and a network of family friends.   He has the promise of support and employment from Mr Graham.   Although there are no direct promises of support from Mr Wayson, or Mr DeCis, their continued regard for the visa applicant, notwithstanding his criminal history suggests that support would probably be forthcoming from them if needed.

30.     However, the most significant promise of support is obviously that provided by Mary-Ellen Basic.   She is a very senior and experienced business woman.  She has been highly instrumental in gathering together the material presented in support of the visa applicant’s case for the purposes of this review.   She frankly conceded that she had very grave misgivings about her daughter Emma’s relationship with the visa applicant in its initial stages, but she says that he has so impressed her with his genuine desire to establish a family and live a socially responsible life in Australia with her daughter that she now unreservedly supports his application.   It would be easy to assess this as new found enthusiasm engendered by her resignation to the inevitable caused by a stubborn and persistent daughter’s obdurate attempt to have her own way, but I am unable to dismiss her evidence on this basis.    On the contrary, I was most impressed with her evidence.   She is able and willing to provide comfortable and secure accommodation for the applicants and she is able and willing to provide her prospective son-in-law with employment overseeing the renovation of a development property in which she has an interest.   Her willingness to provide the quality and degree of support which she described in her evidence could be seen by some prospective husbands (of her daughters) as controlling and intrusive, but I incline to the view that a structured and inclusive family life of the kind which she portrayed is just the kind of stability and encouragement that the visa applicant desires and needs.   There is a risk of friction and possible dissent in the future, but it would be speculative to see it as a real probability at the present time.

31.     If the applicants are unable to reunite in Australia, there will obviously be hardship to both of them.   The visa applicant, although of Tongan birth, finds himself “a stranger in his own land”.    Paid work is unavailable, he has language difficulties and he is no longer welcome as a resident at his parents’ home.  The review applicant finds herself unable to cope with the third world conditions and her lack of acceptance by the locals in Tonga.    I am satisfied that the relationship will not survive unless they can reunite in Australia.    The respondent’s suggestion that they could live together in Fiji seems to me to be impractical and unrealistic.

Conclusion

32.     Mr Baker referred me to the decision of Valanui and Minister for Immigration and Multicultural Affairs (1999) AATA 385 (4 June 1999). I had occasion to refer to this decision myself in the recent case of Busary and Minister for Immigration, Multicultural and Indigenous Affairs  V2005/107 (26 April 2005).   I need not repeat here what was said by Deputy President Gerber in Valanui.   The present case is very similar to Busary’s case, although the present visa applicant has a more extensive criminal record than Busary did.   When I first saw the present applicant’s very bad record, my initial reaction was that he would have no hope of persuading me to exercise my discretion in his favour.   I have since had occasion to anxiously weigh all of the evidence and, as a consequence, I have changed my mind.   I have decided to set aside the decision under review and remit the visa application to the respondent with a direction that the application not be refused on character grounds.  That is the direction which I now give.  I do not think that the Australian community would expect otherwise.

I certify that the 32  preceding paragraphs are a true copy of the reasons for the decision herein of  The Hon C R Wright QC (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  14 April 2005
Date of Decision  10 June 2005
Counsel for the Applicant         Mr D Baker
Solicitor for the Applicant          McNamaras
Counsel for the Respondent     Ms G Bennett
Solicitor for the Respondent     Clayton Utz