Bridle and Minister for Immigration and Citizenship

[2007] AATA 1440

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1440

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600847

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCETTA BRIDLE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date6 June 2007  

PlaceCairns

Decision That the decision under review be set aside and the matter to be remitted to the respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 to refuse to grant a tourist visa not be exercised.

..............................................

Deputy President

CATCHWORDS

IMMIGRATION – visa application - application by citizen of United Kingdom for tourist visa – character test not satisfied – applicant has criminal record – residual discretion under Direction 21 – consideration of protection of Australian community and expectations of Australian community – applicant has rehabilitated - unlikely that applicant will re-offend – decision under review set aside – matter remitted to respondent with direction that discretion in s501(1) of Migration Act 1958 to refuse to grant a tourist visa not be exercised

Migration Act 1958 – ss499, 501(1),(6)(a)

Direction No. 21 – Direction: Visa Refusal and Cancellation under s501 of the Migration Act 1958 – 23 August 2001

Theft Act 1968 (U.K) – s8

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493

Brown and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 551

REASONS FOR DECISION

6 June 2007   Deputy President P E Hack SC    

Introduction

1.The applicant, Mrs Francetta Bridle, lives in Australia. She is the mother of Mr Matthew Box who lives in, and is a citizen of, the United Kingdom. In July 2006 Mr Box applied for a tourist visa to enable him to travel to Australia to, amongst other things, visit Mrs Bridle. Mr Box wanted to travel to Australia for a period of 4 weeks but in any event the category of visa would permit a stay of only 3 months.

2.On 30 October 2006 the respondent Minister, by a delegate, refused to grant a visa because Mr Box did not pass the character test set out in s 501(6)(a) of the Migration Act 1958. Mrs Bridle, as the sponsor of the application for a visa, seeks a review of the decision.

Legislative setting

3.Section 501(1) of the Migration Act permits the Minister to refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test in s 501(6) of that Act. It is unnecessary for present purposes to set out the terms of s 501(6); it is sufficient to note that a person who has a “substantial criminal record” does not pass the test. A person has a “substantial criminal record” if, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more.

4.It is not in issue that Mr Box has a criminal record that answers that description; he was sentenced to imprisonment for 45 months in the Bristol Crown Court on 9 November 2001.

Direction 21

5.However there remains a residual discretion which, in the present case, was exercised adversely to Mr Box. The exercise of that discretion is informed by a statutory instrument - Direction 21 made by the then Minister on 23 August 2001. That Direction, made pursuant to power conferred by s 499 of the Migration Act, binds me in the exercise of the residual discretion. It sets out matters that I should have regard to when exercising the discretion to decide whether or not Mr Box should be permitted to enter Australia.

6.The Direction sets out three primary considerations on which the Government places importance – the protection of the Australian community, the expectations of the Australian community and, in cases where children under 18 are concerned, the best interests of the children – and to which due regard must be had and requires me to adopt a balancing process which takes into account all relevant considerations.

7.Given that it is Mr Box’s criminal history that is critical in the case it is as well to set it out in full. Mr Box was born in December 1970. He was first before the courts in August 1986 when he pleaded guilty to offences described as taking a conveyance without authority, burglary (from a non-dwelling) with intent to steal and driving whilst disqualified. He was placed on a supervision order for a period of 2 years.

8.Then in July 1989 he was convicted of an offence described as theft from a vehicle and fined £150. Some 12 months later he again appeared in court and was convicted of offences of possessing an offensive weapon in a public place and possession of a controlled drug. On each charge he was fined £100. On 5 March 1999 he pleaded guilty to offences of going equipped for theft of a motor vehicle and interfering with a motor vehicle. He was fined £75 on each charge.

9.To this point Mr Box’s criminal history was fairly minor but that changed in November 2001 when he appeared in the Bristol Crown Court and pleaded guilty to three offences of robbery, all committed in July 2001. On this occasion he was sentenced to imprisonment for 45 months. He appears to have been remanded in custody from his arrest on 21 August 2001. Subsequently, in February 2002, he appeared in the Bristol Magistrates Court and pleaded guilty to offences of burglary from a non-dwelling with intent to steal and burglary and theft from a non-dwelling. These offences had been committed in June 2001. He was sentenced to 4 months imprisonment concurrent with the sentence of 45 months.

10.Mr Box was released from prison on 8 April 2003 and was subject to a home detention curfew for three months followed by supervision for a further 9 months. So far as can be ascertained he satisfied the conditions of his release and has not been in trouble since that time. 

11.I turn then to the application of the Direction in this case.

12.The protection of the Australian community is a primary consideration. I am required to take into account the level of risk to the community from the entry of Mr Box. The factors relevant under this head include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated and whether visa refusal might prevent or deter similar conduct. It is, as well, relevant to have regard to the length of stay that the visa would permit. 

13.The submissions on behalf of the Minister focus, rightly, upon the seriousness of the offences of robbery. The Direction lists examples of offences considered by the Government to be very serious. These include offences that involved violence or the threat of violence. Robbery, constituted by s 8 of the Theft Act 1968 (U.K.), is an offence of which the use of, or the threat to use, force is an element and thus the offences of robbery are to be regarded as being serious. But beyond that the fact of a sentence of 45 months, as the first sentence of imprisonment after a series of non-custodial sentences, suggests that the circumstances of these offences were regarded as being serious by the sentencing judge. 

14.And there is, as well, the fact that these offences were the last in a series of increasing seriousness.

15.The next factor that I am to have regard to is the likelihood of re-offending. In the absence of evidence about Mr Box’s psychological make-up I am left with his criminal history as the principal evidence from which that likelihood may be gauged. The Minister’s submissions accept that it is unlikely that Mr Box will re-offend while in Australia however it is submitted that there remains a real risk that the conduct for which he was sentenced could be repeated. Reliance was placed, for that latter submission, on the decision of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey[1].

[1] (1993) 40 FCR 493.

16.That case stands as authority for the proposition that there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low. I am not here concerned to make an assessment of whether there is a “real risk” of re-offending, an expression found in the policy document in issue in that case; rather I am concerned to consider the likelihood of re-offending. If, as is accepted, it is unlikely that Mr Box will re-offend in Australia that concession needs to be taken into account in making the judgment involved. It is also relevant to consider the whole of Mr Box’s history and the seriousness of, particularly, the robbery offences. It is, as well, relevant that Mr Box committed those offences when he was aged 30. He was not then a youthful offender who lacked maturity.

17.But it is also relevant, and accepted as so by the Direction, for me to have regard to the extent of rehabilitation already achieved. The evidence I have is that Mr Box has not offended since the series of three robberies in July 2001 and that since his release from prison in April 2003 he has not been convicted of any further offences. The extent to which that gap suggests that he has changed his ways is diminished somewhat by the existence of the much longer gap between his convictions in July 1990 and those in March 1999. The 2001 offences were carried out at a time when Mr Box was in the grip of drug addiction and were driven by that addiction. It is to his credit that he appears to have put that addiction behind him. 

18.Moreover there is evidence from a number of persons who attest to his having turned over a new leaf. Of those the most significant is that from his Probation Officer, Mr Weeks, who monitored his release on supervision. Mr Weeks has had no contact with Mr Box in the last 3 years however at that time Mr Box was working and drug free. Mr Weeks said:

“I fully appreciate that his criminal history will be of concern but I feel confident he currently presents as a low risk of harm to the public and risks of re-offending are also low.”

That conclusion may be more readily accepted where it accords with the view taken by the Minister’s delegate.

19.The Direction requires me to take into account notions of general deterrence; the likelihood that visa refusal will prevent (or inhibit the commission of) like offences by other persons. The Minister invites me to find that if the decision were to be affirmed that decision may prevent or discourage similar conduct by like-minded persons. I have difficulty in seeing how I could reach that conclusion beyond recognising the general notion that there is likely to be an awareness in the community that there exists a power to refuse a visa where criminal conduct has been engaged in.

20.The other primary consideration that is relevant is the expectations of the Australian community. It is said on behalf of the Minister that the Australian community would expect non-citizens who wish to visit Australia to be law abiding persons who represent no threat to the Australian community. I am prepared to assume that that may be so. However I consider that the Australian community would also realise that no system can guarantee that visiting non-citizens will not commit criminal offences. And I consider, as well, that the Australian community would expect that the point would be reached where non-citizens with criminal records should be regarded as having reformed their ways. 

21.There is another aspect of community expectation referred to in paragraph 2.12 of the Direction which is that in some cases the nature of the character concerns or offences may be such that the Australian community would expect that the visa not be granted. I am obliged to have regard to the Government’s view in this respect.

22.Mr Maycock, the solicitor for the Minister, placed reliance upon the decision of Deputy President Estcourt QC in Brown and Minister for Immigration and Multicultural and Indigenous Affairs[2] as demonstrating this aspect of the expectations of the Australian community. In that case the visa applicant had been involved in a very serious drug trafficking offence in the United Kingdom. He pleaded guilty to a charge of possessing 219 kilograms of cannabis resin with intent to supply it and was sentenced to a term of imprisonment of 6 years. There was significant evidence before the learned Deputy President of rehabilitation and recent good conduct. The visa applicant had lead a blameless life for some 3½ years after serving 18 months supervised probation on his release from prison. However the Deputy President appears to have accepted a submission that that period was insufficient to allow rehabilitation and recent good conduct to assume sufficient importance to outweigh the competing considerations of the serious nature of the offence, the need for general deterrence and the expectation of the Australian community that those involved in drug related crime of very significant proportions in the relatively recent past should not be allowed entry into Australia.

[2] [2004] AATA 551

23.The decision in that case was informed by a view, expressed at paragraph [20], that:

“The Australian community would not expect a visa to be afforded to a person convicted, as was the visa applicant, of possession, in the relatively recent past, of illicit drugs with a street value of $2,000,000 with intent to supply those drugs and whose own criminal justice system regarded as meriting the imposition of a period of 6 years imprisonment.”

It is relevant that the refusal of a visa operates to prevent Mr Box from seeing his mother however I regard that as having little significance where it is open to Mrs Bridle to visit her son in the United Kingdom.

24.Having regard to these matters, and in particular the primary considerations, I have come to the view that the discretion in s 501(1) of the Migration Act ought not be exercised. In my view where it is accepted that it is unlikely that he will re-offend the Australian community would, I think, regard the conduct of someone trafficking in drugs for personal gain as much more abhorrent than the conduct of someone driven to commit crimes of personal violence by the grip of drug addiction. The robbery offences here, viewed alone or together with the balance of Mr Box’s criminal history, are not such that the expectation of the Australian community would be that a visa should be refused. There is as well, the acceptance that Mr Box is unlikely to re-offend and substantial unchallenged evidence that he has changed his ways.

25.I am sure that Mr Box will appreciate that any lapse into criminal conduct will have the effect that his visa would be liable to be cancelled and that it would be unlikely that he would be re-issued with a fresh visa.

26.I would set aside the decision under review and remit the matter to the respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 to refuse to grant a tourist visa not be exercised.      

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Eleanor O’Gorman, Associate

Date of Hearing  5 June 2007
Date of Decision  6 June 2007
The Applicant appeared in person  
Solicitor for the Respondent     Clayton Utz