Brown and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 551
•31 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 551
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/66
GENERAL ADMINISTRATIVE DIVISION ) Re Ms SARAH ELLEN BROWN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date31 May 2004
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration - Class TR subclass 676 tourist (short stay) visa refused - "the person's past and present criminal conduct" - ground for failure of character test - decision affirmed.
Migration Act 1958 – s501(6), (7)
REASONS FOR DECISION
31 May 2004 Mr S P Estcourt QC., (Deputy President) 1. The visa applicant has applied for a TR (Subclass 676) Visitor visa to allow him and his and two children to come from England to visit his sister, aunt and two cousins in Australia for a period of 4 weeks.
2. The visa application has been refused on the basis that the visa applicant does not pass the character test posed by s501 of the Migration Act 1958 (“the Act”) by reason of having a “substantial criminal record” within the meaning of s501(6) of the Act as explained by s501(7).
3. On 23 July 1996 the visa applicant appeared in the Crown Court at Manchester in England and pleaded guilty to a charge of possessing a large quantity of cannabis with intent to supply it. He was sentenced to 6 years imprisonment which sentence was affirmed on appeal by the Criminal Division of the Court of Appeal.
4. Section 501 (6) of the Act provides that a person does not pass the character test as required by s501(1) where “the person has a substantial criminal record (as defined by subsection (7)”. Subsection (7) of s501 provides that “a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more”.
5. Plainly, the visa applicant does not pass the character test and thus can only obtain the visa he seeks if the case is an appropriate one for the exercise of the discretion provided by s501 to nonetheless grant the visa. Regrettably it is not.
6. The exercise of the Tribunal’s discretion is governed by Ministerial Direction No 21 which was issued under s499 of the Act for the guidance of decision-makers and which binds the Tribunal.
7. Ministerial Direction No 21 provides for the balancing of a number of what are called “primary considerations” and “other considerations”
8. The first of the primary considerations is the “protection of the Australian community” which involves three relevant factors, namely:
· the seriousness and nature of the conduct;
· the likelihood that the conduct may be repeated; and
· whether visa refusal may prevent or discourage similar conduct.
9. Before turning to the Australian Government’s view of the seriousness and nature of the conduct, it is necessary to turn to the facts of the visa applicant’s offence and the comments of the Crown Court judge on passing sentence.
10. The visa applicant explained the circumstances of his offending in a statement dated 11 November 2003 in the following terms:
“At the time of my offence I was running a garage mainly carrying out accident repairs to damaged vehicles for insurance companies and also some minor mechanical work.
I had been working in the motor trade since leaving school in 1980 and in 1988 decided to set up my own business and so I found premises to rent and began operating my own service. The first two years went quite well for me and I purchased some new equipment to keep up with the changes in modern cars, etc. and was doing very well until around late 1995 when the insurance companies started to use only the larger garages because they could get better rates from them. Due to this reduction in work from insurance companies by early 1996 things were getting quite tough for me. My wife and I had bought a new house back in early 1995 so we had a bigger mortgage and money was getting tight, also by this time we had two young children.
In 1993 I had set up a wheelie bin cleaning service with a friend, Steven Henshaw, who is now my partner. We ran the wheelie clean business on a part time basis as I had my garage to attend to and Steven was employed as a Warehouse Manager. We employed staff to man the business which did not leave much time for us but we could see it had a future.
On 25 April 1996, the day before I was arrested, I was approached by a man who had frequently used us to repair some vehicles for him and I had got to know him quite well over the previous two years. I had told him that work was slowly drying up and that the bills were getting harder to pay and he made me an offer which at the time I felt difficult to refuse which was to drive a van from Manchester to Birmingham and meet up with another driver at a certain location, store the blocks of cannabis in the van and return to Manchester. All this was to be done during the night of 25 April 1996 and on the following morning he was to come and collect the vehicle from the garage and I would be paid £1500. No one knew what I was doing that night, not even my wife. I told her I was working. Within an hour of returning to the garage on the morning of 26 April the police arrived and searched the premises and van where they found the cannabis resin. I was arrested and my staff and taken to the police station. When interviewed I told the police what I had done and my staff were released immediately. I helped the police as much as I could and one other person was arrested but was released due to lack of evidence. I pleaded guilty at my first Crown Court hearing and was sentenced to 6 years imprisonment.”
11. The Crown Court judge’s comments on passing sentence are relevantly reproduced in the judgment of the Court of Appeal affirming the sentence. Judge Rivlin in delivering the decision of the Court said:
“HIS HONOUR JUDGE RIVLIN: On 22nd July 1996 this applicant appeared in the Crown Court at Manchester and pleaded guilty to a charge of possessing cannabis with intent to supply it. He was sentenced to six years’ imprisonment. He now renews his application for leave to appeal, leave having been refused by the single judge.
In brief, on the day of this offence, that is 26th April 1996, a box van which had been driven by the applicant from Birmingham to Manchester was seized by the police and searched. They found a concealed compartment and recovered from it 219 kilograms of cannabis resin. This was said to have a wholesale value of some £320,000 and a street value of approximately £1 million. The applicant pleaded guilty to the offence at the first opportunity on the basis that he was merely a courier of the drugs and that he was to receive about £1,500 for his part in the matter. It is said on his behalf that by imposing a sentence of six years’ imprisonment the learned judge cannot have given sufficient credit for his plea of guilty and what is described as his subordinate role in the offence.
When sentencing the applicant the learned judge dealt with this last submission in this way. He said:
`Can it be said that your involvement in this matter amounted to a subordinate role? The undisputed facts are that in your business premises was found a van, cleverly concealed, in which was the cannabis resin to which I have referred. A part of the concealment involved a panel, the screws to which had been removed, and it was you that was in possession of the screws. You say that you had been to Birmingham in order to collect the drugs and you say that you had been invited to do that by someone that you barely knew, providing you with a vehicle about which you previously knew nothing. You admit that you drove down to Birmingham and that you were present when, in the hours of darkness, these drugs were loaded on to your van. Now you accept that, realistically, you knew that it was cannabis that was being loaded on to that van. I say ‘your’ van as referring to the van which you admit using on the day in question.
Your explanation that you really knew nothing of the person who invited you to undertake this dangerous task is one that really doesn’t bear examination. To become involved in this it must have been someone that you knew sufficiently well to give you directions as to where you should go, who you were going to meet. You must, in the real world, have had a good idea as to what it was that you were going down to Birmingham for.”
Then the learned judge went on to say:
`… you were not at the very forefront of this chain of supply but you displayed a significant role, in my judgment, in the transportation of what was a very large quantity of cannabis which itself was going to be in the first instance transferred not to individual customers, if I can so describe them, but to other people who themselves were going to deal in the drug.’
We consider that the learned judge was fully entitled to take that view of the applicant’s role, and that his view of that role did not go behind the basis of his plea. The cases of Aramah (1982) 4 Cr.App.R. (S)407 and Netts 2 Cr.App.R.(S)117, have been drawn to our attention. In the latter case the appellant was a courier of 94 kilograms. He denied his offence but was convicted. He was initially sentenced to seven years’ imprisonment but this was reduced on appeal to five years. That is prayed in aid on the applicant’s behalf before us, but the fact is that this applicant was involved in more than twice the amount which was concerned in the Netts case. Here the applicant was concerned in a massive quantity of cannabis amount to 210 kilograms. When all is said and done, this was serious involvement in a huge quantity of Class B drugs.
We have considered all the submissions made on the applicant’s behalf, but can find no reason to criticise either the approach adopted by the learned judge or the sentence which he imposed.
Accordingly this application is dismissed.” (my emphasis)
12. On any view of it the crime for which the visa applicant was convicted and sentenced was extremely serious and the visa applicant does not suggest otherwise.
13. Paragraph 2.1 of Part 2 of Ministerial Direction No 21 states that the Australian government views non-citizens who have sought to profit from the supply of drugs as “extremely serious offenders”. Specifically it is said that:
“It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which put the lives of young Australians at risk, be viewed as completely unacceptable to the community.”
The paragraph also states in equally strong language that:
“persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people.”
I have little doubt that these statements were not intended to be confined to drug trafficking in Australia.
14. The second of the “primary considerations” is the likelihood that the conduct may be repeated. I do not regard this consideration to be of particular application to the case of the visa applicant in the present matter. He was obviously mortified by his period of incarceration and he was strong in his evidence to the Tribunal that prison is that last place on earth he would even wish to go to again.
15. There is always the somewhat weak suggestion that because a person has offended once there is a possibility he or she will do so again, however in the case of this applicant his uncontradicted evidence is that he disassociated himself from his former garage business and no longer associates with anyone in that trade, which he obviously regarded as the source of his offending.
16. The third of the factors under the head of the first of the “primary considerations” is “general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
17. This factor is also a most important consideration. As the Ministerial Direction itself states, perhaps in rather inelegant language, “it is important as a deterrent to other criminals that it is clearly understood that crime involving drug trafficking, be (sic) viewed as completely unacceptable to the community.”
18. It will plainly have a general deterrent effect if people minded to commit drug related crimes know that their conviction will carry with it for a considerable period of years, the loss of the privilege to travel to other countries where such offences are regarded as abhorrent.
19. The second and only other relevant “primary consideration” in this case is “the expectations of the Australian community. The Direction provides in paragraph 2.12 that where a non-citizen has been convicted of offences in Australia or elsewhere visa refusal may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person would not be granted a visa.
20. Such is the case in my view in respect of a conviction for possession of a very large quantity of drugs with intent to supply. 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.
21. Of the “other considerations” set out in the Direction to be balanced against the “primary considerations”, although generally given less individual weight, the following are relevant to the case at hand.
· the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members are able to travel overseas to visit the non-citizen;
· any evidence of rehabilitation and any recent good conduct;
· whether the application is for a temporary visa or a permanent visa;
· the purpose and intended duration of the entry to or stay in Australia including any significant compassionate circumstances.
22. The visa applicant’s only immediate relative resident in Australia is his sister, Sarah Brown, the review applicant in this case. Ms Brown last saw her brother about 5 years ago. She is single, employed and has no children and is thus able to travel again to see her brother in England should she wish. Beyond being disappointed if her brother is unable to holiday with her and his wife and children in Australia, it cannot be said that she would suffer hardship as a result of the visa refusal.
23. There is significant evidence of rehabilitation and recent good conduct on the part of the visa applicant. He pleaded guilty to the charges against him at the first opportunity, he co-operated with police whilst he was in prison and he assisted them with their inquiries into the wider involvement of persons in his crime. Whilst serving his sentence he undertook several rehabilitation and awareness courses and undertook courses with “The Samaritans” in prison helping other inmates with counselling. Moreover, he is genuinely remorseful and his uncontradicted evidence to the Tribunal included the following statement:
“this work had a profound effect on me and made me acutely aware of how crime could affect other people and myself, and I made up my mind then that I would never step out of line again.”
24. The visa applicant was released from prison early as a result of good behaviour and served 18 months of supervised probation in compliance with all conditions imposed on him. He works hard to make reparation to his family, and he donates from his earnings to a local victims of crime charity in Manchester. He is well regarded by his family, friends and business associates. He has a successful business. He has committed no offence of any nature since his release from prison and in fact, apart from the offence for which he was incarcerated, he has only one prior conviction and that is for a “drink driving” offence inly July 1982.
25. The difficulty for the visa applicant is that his rehabilitation and recent good conduct have only been established in the last few years in as much as his non-supervised life only resumed at the completion of his probation in October 2000 some 3½ years ago. The respondent contended that such a period of years was too short to outweigh the considerations of the seriousness and nature of his offending and the need for general deterrence. Counsel for the respondent, Ms Arduca, suggested a period of 5 years from the completion of probation was an indicative period to allow rehabilitation and recent good conduct to assume sufficient importance to outweigh competing considerations.
26. The application is for a temporary visa only and the intended duration of the stay in Australia is only for a few weeks. The purpose of the trip is to visit relatives in Brisbane and Sydney in company with his sister, Sarah, and to visit Cairns, Port Douglas and Melbourne again, in her company all the while.
27. There are no significant compassionate circumstances. Again, beyond disappointment at not seeing him and his family in Australia the visa applicant’s relatives here will not suffer hardship as a result of the visa refusal.
28. After anxious consideration of all factors in a case where there is considerable evidence to suggest that the visa applicant is rehabilitated and of continued good conduct, I have reached the view that at this point in time those factors, coupled with the fact that the visa sought is only temporary and to permit a very short stay in Australia in the company of Australian citizens of obvious good repute and standing, do not outweigh the factors involved in the primary considerations, namely the very serious nature of the criminal conduct, 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.
29. It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 27 May 2004
Date of Decision 31 May 2004
Counsel for the Applicant Applicant appeared on her own behalf.
Solicitor for the Applicant
Counsel for the Respondent Ms Elena Arduco
Solicitor for the Respondent Australian Government Solicitor
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