Busary and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 403

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 403

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/107

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AARON ROLANDO BUSARY

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date26 April 2005

PlaceMelbourne

Decision The Tribunal directs that the visa applicant’s visa application be remitted to the respondent with a direction that the application be assessed on the basis that the applicant is not a person who is not of good character.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration -  Special Eligibility (Residence) (Close Ties) (subclass 832) – 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.

Migration Act 1958 – s501

Re Valaniu and Minister for Immigration and Multicultural Affairs (1999) AATA 385

REASONS FOR DECISION

26 April 2005 The Hon C R Wright QC (Deputy President)     

1. The applicant, Mr Aaron Busary, seeks review by the Tribunal of a decision of a delegate of the respondent made on 20 January 2005 under Section 501 of the Migration Act 1958 (“the Act”). On 6 October 2004 the applicant lodged an application for a Special Eligibility (Residence) (Close Ties) (subclass 832) visa at the Department of Immigration and Multicultural and Indigenous Affairs. The applicant failed to satisfy the delegate that he passed the character test. The delegate exercised his discretion under s501(1) to refuse to grant the applicant the visa sought. Section 500(1)(b) of the Act provides the Tribunal with jurisdiction to review a decision of a delegate made under s501 of the Act.

2.      The applicant was served with notice of the delegate’s decision on 1 February 2005.    On 10 February 2005 the applicant lodged an application to review with the Tribunal.   The reasons for this application were stated as follows:

“I disagree with the decision of the case officer as the past criminal conduct was an innocent mistake.  I have changed my way of life and I have committed myself to be a responsible future citizen.  I regret that I was in the wrong accompany (sic) of friends as a teenager.”

3. A hearing of the application to review took place in Melbourne on Tuesday 12 April 2005. By reason of the provisions of s500(6L) of the Act a decision by the Tribunal is required by 26 April 2005, otherwise the same is deemed to have been determined adversely to the applicant. The applicant was born in Sri Lanka on 10 September 1983. He is presently aged 21 years. He arrived in Australia as a child, on 10 October 1996, having just turned 13. He came with his parents and younger brother and sister. All were travelling on visitors’ visas. Subsequently, he was included in his parents’ application for a protection visa. That application was refused. Appeals to the Refugee Review Tribunal and Federal Court were unsuccessful, as was an application for the exercise of Ministerial discretion. At one point, the applicant’s parents joined the Muin and Lie class action in the High Court, however, they withdrew from that action on 24 September 2004. His parents and younger sister have since returned to Sri Lanka. The applicant’s younger brother remains here.

4. The respondent contends that the visa applicant is a person who is not of good character on the basis that his pattern of offending and his general conduct are such as to cause him to fail the character test provided in s501(6)(c)(i) of the Act.

The visa applicant has committed the offences listed below:

Date of Sentence	Nature of Offence	Result
17 September 2002	(i) Handle stolen goods (ii) Refuse to state name and             address	Without conviction Adjourned to 17/9/03 Pay $50 to Court Fund.
24 March 2003	Attempted Armed Robbery	10 months detention Youth Training Centre
2 April 2003	(i) Unlawful Assault (2 counts) (ii) Theft of a vehicle	Without conviction Fined $500 Without conviction Fined $300

5.        The armed robbery offence was committed in October 2002, only 18 days after the visa applicant had been dealt with in the Magistrates Court for handling stolen goods.    The offences of unlawful assault (2) and theft of a motor vehicle apparently occurred in February 2002.    The dates are not entirely clear from the material provided.    The two assaults and the theft occurred on separate occasions and were dealt with by way of sentencing while the visa applicant was serving his 10 months detention for attempted armed robbery.

6.        The facts relating to the crime of attempted armed robbery were set out in the sentencing remarks of Judge McInerney in the Melbourne County Court.   He said:

“The learned prosecutor, Mr Marsh, aptly described this whole circumstance, if I may use his words as I had noted them.  What the court was looking at, he described as a bizarre amalgam of premeditated offending in regard to the most trivial of stakes, motivated by covetous greed.  To make any sense of why such a serious crime was committed by these four young men, one has to comprehend that their aim was to attain 18 inch rims for a HSV car and some internal fittings from the victim’s HSV Commodore and perhaps, in addition, make some sales of some property in it.

It is to be understood that in order to obtain such property, these four persons resolved, not only to attend at the victim’s home with a shotgun, but resolved, if necessary, to use this shotgun to scare the persons to hand over the keys.  The use of the shotgun is scary enough, but if you look at Exhibit A, and want to somehow gauge what was going through the minds of these young men, a reading of the transcript of Mr Yildiz’s statement from pp. 63 to 65 makes for what can only be described as stark reading.

The learned prosecutor, in a summary of this crime, set out that the Clarkes had only just got home, were in the process of eating their dinner, they were disturbed by a person, or two persons, one in a balaclava and one in a jacket.  A shotgun was produced.  Mrs Clarke panicked and screamed and closed the door, and thereafter a bang was heard.  The husband came to the door, and there was a cloud of smoke outside the door, and he proceeded to follow at least two of the culprits.

True to the statements made ultimately by each of the four, there were only blanks in the shotgun.  That was confirmed by the fact that the police search of the scene showed no bullet hole.”

The sentencing judge rightly remarked that this was serious criminal conduct.   Within the guidelines of the Minister’s Direction paragraph 2.6 No. 21, this offence, and the offences of assault, are all regarded as “very serious”.

7.        At the Tribunal hearing, oral evidence was given by the visa applicant, his girlfriend, Christine Fernandez (aged 20 years) and her father Godfrey Joseph Fernandez.    In addition written statements by each of these witnesses were received into evidence and marked Exhibits A1, A3, and A2 respectively.    A psychiatric report by Dr Jeffrey Cummins became Exhibit A4, and 2 psychological reports by Mr Bob Ives were received as Exhibits A5 and A6 respectively.   Other documentary exhibits relating to the character of the visa applicant and the social and charitable works of Godfrey Fernandez were also received Exhibits A9(b), A10 and A11 were particularly helpful.    I have read all of this written material and I have also considered the contents of the Statements of Facts and Contentions submitted by each party and the Tribunal and Court decisions referred to therein.

8.        The visa applicant does not deny his history of offending but says that he is now remorseful for his past illegal conduct and is striving to lead a moral and lawful existence with the encouragement of his girlfriend and the practical guidance and assistance provided by her father.

9.        The remarkably generous support provided by Mr Fernandez is referred to in his written statement (Exhibit A2) in the following terms:

“1.       I live at Lot 60 Bangholme Road Bangholme and I am a member of the Institute of Automotive Mechanical Engineers of Australia and London.  I am also the director of Jerome Mobile Engineers Pty Ltd and have been an Australian citizen for the past twenty-two years.

2.        I have come to know Aaron Busary (“Aaron”) for just over the last two years through my daughter Christine Fernandez.  The two have been in a serious relationship over this period of time and are very much in love.  Christine and Aaron have solemn intentions of getting married once Christine completes her Commerce degree at Deakin University.

3.        With regard to Aaron and the charges that were laid against him while he was in high school and at a juvenile stage of his life, I am fully aware of them and have not held this against him as he has proven himself over the last two years to be a changed young man.  Indeed, he has become an extremely mature young man and ambitious in all aspects of his life.  Therefore, as the father of my only daughter Christine, I have no fear in guiding her into a future life in marriage with Aaron.

4.        Aaron attends Jerome Mobile Engineers management trainee lectures, along with five other trainee engineers of JME, who are also making their way towards successful futures.  For the past six months, Aaron has been living on my farm where my wife and I have been supporting him in all his needs.  Our financial support includes legal fees and various other expenses encountered in his day to day living.  Aaron lives in the second house block behind my residential property on the farm, and shares accommodation with two other young men, his brother Taron and my son Christopher.  Together they maintain a clean home and look after the property extremely well.

5.        Aaron came to Australia from Sri Lanka via Italy, during the civil unrest in Sri Lanka.  This profound change in his life as a child, including great psychological and cultural changes, confused him and by high school he had landed with the wrong company.  In an attempt to fit in with friends, Aaron became involved in immature criminal behaviour which he now deeply regrets.  Knowing Aaron today, I see his involvement in these past incidents as totally out of his character.  I can honestly say that in comparison to some of the youth I have helped, Aaron’s situation is not as bad.  When I met Aaron there was no real need for me to help him or advise him to change his life because he had already come to that decision and begun to help himself.

6.        Aaron has now lived in Australia for almost nine years.  From what he has told me and as an adult father and also a caretaker of disturbed youth, I can assure any member of the Australian Government and the Australian people in general that Aaron is already on the road to a successful future and I will continue to provide a guiding and supporting hand in his life.  I will stand by him to help him achieve all his aspirations and to continue to make a positive contribution to our country.”

10.      In his oral evidence, Mr Fernandez expanded upon the community work done by him to assist young offenders rehabilitate themselves from a life of crime.   Plainly he has had considerable experience and success in these ventures.    He pledged to continue assisting the visa applicant in future and I believe he will.

11.      The contents of the reports by Dr Cummins and Mr Ives need not be discussed at length.    Neither was called to give oral evidence, but their written opinions were not challenged except insofar as their views were based upon aspects of the visa applicant’s evidence which the respondent contends were unreliable and lacking in frankness.  I will come to these matters shortly, but I should state here that in general I accept the reports of both professionals in their assessment that the visa applicant is of above average intelligence and has good prospects for rehabilitation.    They also assessed him as being genuinely remorseful for his past conduct and that he has a low risk of recidivism.    I would be more confident in accepting these latter assessments were it not for two features of the visa applicant’s evidence.

12.      These features are as follows:

(a)The visa applicant in his application to review, his statement (Exhibit A1) and his oral evidence tended to minimise his involvement in and his responsibility for his past history of offending.   He suggested the primary cause was that he had become involved with a bad crowd who were a malign influence on him due to his immaturity and eagerness for social acceptance.    When giving evidence as to the assault charges he suggested that he had merely had an “argument” with the driver of another car.   Only in cross-examination did he concede that he had threatened a young male and female in the other vehicle with violence.   He said he could not remember the substance of the threats.   He also expanded on his involvement with the car theft incident and conceded that he had “watered down his involvement” to put himself in a better light.  

Additional facts also emerged as to the attempted armed robbery charge which revealed that he and his companions had been looking out for a particular type of vehicle to steal over a period of about 1 week before the attempted robbery actually took place.    He agreed he had not given full details of the offence to Dr Cummins.     He also agreed that he was prepared to put his conduct “in the best light” if there was a risk of trouble.

(b)The applicant claimed sincere remorse for his offending conduct.   I am in little doubt that he has considerable regret for his involvement in the offences listed above, but in view of the attitude manifested by him which I have adverted to in paragraph 12(a) above, it is difficult for me to determine whether this is genuine contrition born of penitence for the trouble, loss, hurt and fear which he and his colleagues have caused to others, or mere self reproach for having been caught and punished for his misconduct.

13.      Dr Cummins, Mr Ives and Mr Fernandez think it is genuine remorse.   In view of Mr Fernandez’s long association with the visa applicant and others of his ilk, and the visa applicant’s unimpeachable behaviour since his release from the Youth Training Centre, I have concluded with some hesitation, that I should resolve my own doubts on the matter in the visa applicant’s favour.

14. Counsel for both parties set forth their submissions as to the statutory and relevant case law bearing upon the issue of good character within the terms of the Act in their Statement of Facts and Contentions. There is no need to discuss these principles at length. They are well known and there was little, if any, conflict between counsel as to what they are or how they should be applied.

15. One issue which does require mention is the suggestion that the visa applicant is no longer a person who is not of good character as based on the fact that he has led a blameless existence since discharge from the Youth Training Facility. It is plain, of course, and is recognised by the Minister’s Direction, that good character can be regained by someone who has a record of bad conduct such as criminal offending, but, in my opinion, a positive conclusion that someone with a criminal past is now of good character, is not arrived at without close scrutiny. Whilst the visa applicant does not have a “substantial criminal record” within the meaning of s501(6)(a) and (7), he did commit several offences of a serious nature within a short space of time.

16. After being sentenced in March 2003 he was in custody at the Youth Training Centre for several months and so was out of harm’s way for this reason alone. He has been living back in the community for something less than 2 years. I infer that he has been under the watchful eye of Mr Fernandez and the soothingly romantic influence of Christine Fernandez during that time. I think it is much too early to say that he has regained his former good character. In my opinion the only appropriate finding on the evidence is that the visa applicant is not a person of good character for the purposes of the Act.

17.      I therefore turn to the question whether or not my residual discretion should be exercised so as to alleviate the consequences of this determination.    The principles to be applied in considering this issue are also set forth in the Minister’s Direction No 21.    The two primary considerations relevant to this application are:

(a)The protection of the Australian community and members of the community.

(b)      The expectations of the Australian community.

18.      In my opinion the visa applicant’s criminal conduct in participating in the attempted armed robbery was very serious indeed.    His assaults upon the male and female motorist, though not resulting in physical injury cannot be dismissed as minor.   His involvement with the motor vehicle theft was by no means inconsequential and his handling of stolen goods was plainly dishonest.   His counsel suggested that the penalties imposed suggested that the offences (other than attempted robbery) were “relatively minor”, but these penalties were a direct consequence of the visa applicant’s age and the rehabilitative approach to young offenders mandated by Victorian legislation rather than any perceived lack of criminality in what he did.

19.      A question of some importance is whether the visa applicant is likely to re-offend.   I have already referred to his character assessments made by others and the absence of offending conduct since his discharge from custody.   Dr Cummins and Mr Ives both concluded that in part at least his offending behaviour was attributable to “adverse peer pressure” (Dr Cummins) and his “strong need to be liked by others” leading to situations “where others could take advantage of him” (Mr Ives.    In short he is easily led.    These characteristics are unlikely to lead to further problems whilst the visa applicant remains under the strong guidance of Mr Fernandez and the applicant keeps away from his former associates with whom he was previously “closely bonded” (Mr Ives), but I entertain some apprehension that if the applicant were to break off his romance with Christine Fernandez, his current “low risk” of re-offending may require review.   These apprehensions are partly counter balanced by the fact that the visa being sought by the applicant is not a permanent visa.

20.      The Minister’s Direction also requires consideration of the question of general deterrence which may be provided to other non-citizens seeking to remain in Australia if the visa sought by the applicant is refused.    I take the view that this is an issue of substance, but of itself does not necessarily dictate the outcome of any individual application.    Its major significance is probably to be found in cases involving immigration fraud such as use of false passports, misleading and deceitful information and bogus marriages.

21.      I turn now to the expectations of the community.   As my colleagues have pointed out on several occasions, the expectations here adumbrated are those entertained by moderate fair minded members of the community with a clear understanding of the relevant facts of the case.   Notwithstanding the objective terms of this definition there is an inevitable subjective element which overlays its application in any particular case and for that reason I generally prefer to leave my conclusion on this issue until I have reviewed other considerations, such as hardship to the applicant and his family, which are also contemplated in paragraph 2.17 and following of the Minister’s Direction.

22.      I can see no basis for finding that refusal of the visa sought will cause hardship to the applicant’s family.    His mother and father have returned to Sri Lanka and are living there, albeit in circumstances of poverty and general apprehension as to their safety due to their being mistakenly taken for Tamils on some occasions.   His younger brother is living with him at Mr Fernandez’s home, but there has been no evidence suggesting that are strong bonds of mutual dependence and, in any event, the younger brother’s continued right to remain in Australia is presently under question.

23.      Although the applicant and Christine Fernandez are not formally engaged to be married, it seems that it is their clear intention is to marry at some time in the future.   It is not disputed that they are in love and genuinely intend to marry.    Mr Fernandez whose views deserve respect, has no doubts about this.   However, both Christine and the applicant are young.    Christine is pursuing a University education and presently intends to follow a career path with her new found qualifications in due course.   On balance however, there is no reason to doubt that, if able so to do, they will marry and start a family.   Plainly Christine would be placed in a position of hardship if the applicant were forced to leave her.   She is an Australian citizen and it would be even more difficult for her than for the applicant to establish a reasonably satisfactory life in Sri Lanka.   I think that if the applicant were forced to leave Australia the romance between them would come to an end.

24.      To my mind the critical issue to be considered is that of hardship to the applicant himself.   He has lived in Australia for nearly half his life.   He has spent 9 years here.    He says he regards himself as an Australian.   He has developed a special relationship with the Fernandez family.   He claims he would find it hard to re-establish himself in the Sri Lanka community due to language skills lost and cultural differences.   His youthfulness at the time of his offending cannot be overlooked.   Deputy President Gerber made some useful observations about this sort of situation in Valaniu and Minister for Immigration and Multicultural Affairs (1999) AATA 385 (4 June 1999). He said:

“Finally, and perhaps somewhat controversially, I am deeply conscious that the applicant came here as a young child, and "while it is less likely that potential deportees who have spent the greatest proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported", I interpret that policy to mean that whereas neither the legislation nor the Government's Criminal Deportation Policy provides an exemption from deportation for offenders who arrived in Australia as young children, that factor is nevertheless a strong consideration militating against deportation where a potential deportee came to this country as a young child and acquired his or her criminal ways in this country, with this proviso - the evidence must indicate that their remaining in Australia is not likely to constitute a continuing and present danger to the Australian community. In other words, community expectations that persons who commit serious crimes will ipso facto be deported even if they are unlikely to reoffend is attenuated in cases where potential deportees come to this country as children. Thus, whilst there is no presumption that potential deportees who have spent the greater proportion of their formative years in Australia will never be deported, it is less likely in special circumstances where there is no more than a minimal risk of recidivism.”

25.      In the final analysis it is the role of Mr Fernandez and his beneficial influence over the visa applicant which causes me to conclude that on balance my discretion should be exercised in the applicant’s favour.    This is a view which I think accords with the expectations which relevant members of the community would entertain in all of the circumstances.

26.      I therefore direct that the visa applicant’s visa application be remitted to the respondent with a direction that the application be assessed on the basis that the applicant is not a person who is not of good character.

I certify that the 26 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  12 April 2005
Date of Decision  26 April 2005
Counsel for the Applicant         Mr Guy Gilbert
Solicitor for the Applicant          Clothier Anderson (Mr Michael Clothier)
Counsel for the Respondent     Mr Michael Brereton
Solicitor for the Respondent     Australian Government Solicitor