Cockram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 1210
•24 May 2024
Cockram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1210 (24 May 2024)
Division:GENERAL DIVISION
File Number:2024/0346
Re:COCKRAM, Jessica Katherine
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Hon J Rau SC
Date:24 May 2024
Place:Adelaide
The decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.
...............................[sgnd].........................................
Senior Member Hon J Rau SCCATCHWORDS
MIGRATION – refusal to grant a Visitor visa (Class FA) under section 501(1) – where Applicant does not pass the character test – Applicant has substantial criminal record –whether the discretion to refuse to grant the visa under section 501(1) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
24 May 2024
INTRODUCTION
Jessica Katharine Cockram (“The Applicant”) seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 21 December 2023, to refuse to grant a Visitor (Class FA) visa (“the Visa”) to her father, Martin Christopher Sampson Hick (“Mr Hick”).[1] Mr Hick’s application for the visa has been refused by a delegate of the Minister, on the basis that he does not pass the character test (“the Decision”).[2]
[1] Exhibit 3, G-Documents, T3: Letter from the Department to Applicant – Notice of visa refusal, 27.
[2] Ibid 14.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. Mr Hick fails the character test on account of him being convicted of “Theft by employee”, for which he was sentenced to 32 months of imprisonment, on 16 September 2013.[3]
[3] Ibid T4 - Attachment B: Police Certificate (UK) (dated 06.01.2017), 28; T6 - Attachment C: Sentencing Remarks from Liverpool Crown Court 30-2.
The Applicant and Mr Hick concede that he does not pass the character test.
The issue before the Tribunal is whether the discretion to refuse to grant his visa application pursuant to s 501(1) of the Act, should be exercised. In so doing, the Tribunal must have regard to Direction 99.[4]
[4] The current Direction under s 499 of the Act.
The hearing was held on 20 May 2024. The Applicant was self-represented, and the Respondent was represented by Mr Alex Chan of Sparke Helmore.
The Applicant gave evidence by Microsoft Teams. She presented as a credible witness.
Mr Hick gave evidence by telephone from the United Kingdom (UK). He also presented as a credible witness.
BACKGROUND FACTS
Mr Hick was born on 10 December 1960 in South Hampton, UK. He is 63 years of age.
Mr Hick was employed by the “Specter Partnership” as a “Legal Executive”,[5] for approximately 21 years. During his employment, he stole almost £159,000.00 from his employer’s clients’ accounts, over a period of about 7 years.[6] He told the Tribunal that he did this to manage his financial commitments which had become overwhelming, partly due to a house renovation that was unexpectedly expensive, and partly due to interest rates.
[5] Not a lawyer.
[6] Exhibit 3, G-Documents, T6 - Attachment C: Sentencing Remarks from Liverpool Crown Court 31.
On 16 September 2013, Mr Hick was convicted of “Theft by employee”. Judge Brown of the Liverpool Crown Court, sentenced him to 32 months imprisonment.[7]
[7] Ibid 30-2; T5 - Attachment B: Police Certificate (dated 06.01.2017), 29.
Mr Hick’s offending is set out in the sentencing remarks of Judge Brown as follows:
“JUDGE BROWN: Martin Hick, for a period of about 21 years you were employed by the Specter Partnership as a qualified Legal Executive. You dealt with probate and conveyancing work and over a period of about seven years you stole almost £159,000 from clients’’ accounts. Mr Linskill rightly describes the fraud as a ‘practised and multi-layered deception’. The fact is it went on for a long period of time, you were in a position of significant trust, a great deal of money is involved and in certain instances false documents were created so that the fraud could be carried out. I am told that the money went into eight different accounts that you held and in total there were some 20 clients of the firm from whom money was taken from their accounts.
It is self-evident that this is a very serious case. I am satisfied that when I apply, as I must, the definitive guidance of the Sentencing Guidelines Council in relation to offences of theft involving the breach of trust that this is a category 1 case. That guideline provides a starting point of three years with a range of two to six years but the guideline is upon the basis that either amounts in excess of £125,000 were stolen or amounts in excess of £20,000 where there was a high or significant degree of trust. I am satisfied you fall into that category in the sense that you were a professional person discharging professional duties on behalf of clients, that the clients trusted you implicitly and what is more and equally significant in this case, so did your employers.
It is clear from the victim personal statement of Mr Patel that your fraud has had a significant impact upon the firm, an impact in various ways. Staff have been horrified to learn of the extent of your deception, at first simply not believing that you were capable of carrying it out but, more than that, the firm itself have been put to a great deal of trouble and, no doubt, expense in unravelling the fraud and putting matters right. I am told that clients themselves have not suffered so it seems to me the true victims in this case is the firm. They have had the enigmae, the embarrassment of the involvement of the Solicitors’ Regulatory Authority and also the fact that their integrity has been called into question. As I made clear to Mr Linskill, professional bodies, professional firms such as the Specter Partnership depend to a very large extent upon their standing for integrity and honesty and when fraud such as this take place that that is bound to have an impact insofar as the confidence that clients will have in them.
Martin Hick, there must clearly be a sentence of imprisonment and a relatively significant sentence. The best point of mitigation you have available to you is the fact you have pleaded guilty. You have done so under the early guilty plea and in view of that I am prepared to give you a full one third discount for it. I also take into account all that has been said on your behalf by Mr Linskill, if I may say so, very eloquently and very realistically. He has said all that could reasonably be said on your behalf and has sought to explain how it came about that you started off committing these offences and then how the situation developed from that. I am mindful that you are of previous good character. I am mindful that the impact of the case is wider than simply the fact you are now facing sentence today. It has obviously had a significant impact on your family life, you are now divorced from your wife and you are not sure how your children are, as it were, going to come to terms with your criminality.
Martin Hick, in some respects it is a tragedy to see an individual such as you in this Crown court dock today facing sentence on such a serious matter but punished you must be and, taking into account all of these factors, I have come to the view the appropriate sentence is one of two years and eight months’ imprisonment.
Take him down please.”[8][8] Exhibit 3, G-Documents, T6 - Attachment C, 31-2 (corrections have been made and underscored as suggested in the original document).
On 27 June 2013, a news article named ‘Solicitor on Theft Charge’ was published as follows:
“A WIRRAL solicitor appeared in court accused of stealing almost PS160,000 from his employers.
Martin Christopher Hick, 52, appeared before Wirral magistrates court yesterday accused of the theft between 2005 and 2012.
Hick spoke only to confirm his name and address, as [address] in Southport, He faces a charge of stealing PS158,828.54 from the Spectre Partnership, based at Rosebrae Court, Woodside Ferry Approach, Birkenhead.
The theft is alleged to have taken place between July 7, 2005 and November 2, 2012.
The court heard the alleged discrepancy came to light after he was made redundant from the company last year. His employers had brought in consultants to examine an account Hick had been working on.
The Specter Partnership, which also has offices in Warrington and London, is a personal injury specialist company, according to its website, operating since 1985.
It works on claims for traffic accidents, accidents at work, clinical and medical negligence and cosmetic negligence, among others.
Prosecutor Brian [O'Connor] asked the magistrates to transfer the case to Liverpool Crown Court. Defence solicitor Nick Cockrell made no further representations and said his client would be giving no indication of plea at this stage.
The case has been listed for a plea and case management hearing at the crown court on October 23.
Martin Hick was released on unconditional bail.”[9]
[9] Ibid T7 - Attachment D: News Article (dated 27.06.2013), 33.
Mr Hick says that he was not a solicitor at the time of his offending, however the serious breach of trust involved, is not materially diminished by this clarification.
Mr Hick was sued by his former employer. A judgement was obtained against him, and he lost his house. The judgement debt was not fully repaid, but he now owes no money.
On 11 October 2014, Mr Hick obtained new employment as a catering assistant with Tesco. He held that job until last year when he retired and took up working part-time in Mrs Hick’s newsagency.[10] He also spends time helping out with his grandchildren.
[10] Ibid T12 - Attachment I, 12; T30 – Attachment W: Application for a Visitor Short Stay Visa (dated 12.11.2017), 94.
In 2015, Mr Hick’s grandson, Child A was born.[11]
[11] Ibid 50.
Mr Hick made a visa application on 14 July 2016 to visit his daughter (the Applicant) and her husband, for the purpose of welcoming the birth of their second son.[12] The status of this application is unknown.
[12] Ibid T25 - Attachment R: Letter from Visa Applicant’s daughter and son in-law, 70; T26 - Attachment S: Letter from Visa Applicant’s daughter (dated 18.12.2016), 71.
In 2016, Mr Hick’s second grandson, Child B was born.[13]
[13] Ibid T12 - Attachment I, 50.
On 12 November 2017, Mr Hick applied for a visa to visit the Applicant, her husband and their two young sons in South Australia, and to spend Christmas with them.[14] His proposed stay was from 8 December 2018 to 6 January 2019.[15]
[14] Ibid T14 - Attachment K: Visa Applicant’s declaration on purpose of visit (dated 08.12.2017), 59; T30 - Attachment W, 77.
[15] Ibid T30 - Attachment W, 80.
Over Christmas 2017, the Applicant visited the Applicant in the UK with her two sons [Child A] and [Child B]. She stayed with her parents for two weeks during her visit.[16]
[16] Ibid T12 - Attachment I, 52.
On 2 June 2018, Mr Hick received the Notice of Intention to Consider Refusal (“the Notice”) to his application for the visa from the Department of Home Affairs.[17]
[17] Ibid T8 - Attachment E: Letter from the Department to visa applicant – Notice of intention to consider refusal of application, 34-6.
On 10 June 2018, Mr Hick provided a response to the Notice by submitting a personal circumstances form.[18] His explanation given for the offending was: “at the time of my offence I was in severe financial difficulty … I felt trapped in debt and was desperate…”.[19]
[18] Ibid T12 - Attachment I: Personal Circumstances Form (dated 10.06.2018), 46.
[19] Ibid 53.
He also stated that: “… I will not reoffend and I will not repeat my mistakes of my past… there is no way I would put my family through the distress and upset that I caused.”.[20]
[20] Ibid.
In 2019, Mrs Hick and 2 of the Applicant’s siblings visited her in Australia. Her sister stayed on for a period. Mrs Hick has visited her several times.
In 2023, Mrs Hick visited the Applicant again on a holiday.
Mrs Hick is the part owner of a newsagency business. Mr Hick now works part-time for this business. They cannot be away from the UK for too long, because of her responsibilities to the business. She has plans to retire and sell the business sometime next year.
Also in 2023, Mr Hick received an inheritance when his mother died. He purchased a flat in Birkdale with the money. There is no mortgage on the property. He lives there with Mrs Hick.
On 11 July 2023, Mr Hick provided another reason in consideration of the visa application: “… It’s been nearly 6 years since I last saw my daughter and my two grandsons and I am desperate to see them again. As both boys have Autism it is difficult for my daughter to travel with them which is why I need to visit them in Australia.”[21]
[21] Ibid T22 - Attachment P2: Email from visa applicant to the Department (dated 11.07.2023), 67.
The Applicant explained to the Tribunal that both boys have autism. This means that they find travel and unfamiliar surroundings difficult. The result of such challenges may be a “shutdown” or a “meltdown”. Both boys are participants of the National Disability Insurance Scheme. They have a support worker, an occupational therapist, a speech pathologist, and a counsellor. These supports are all in place in Adelaide. They will not travel with the boys.
I accept that the boys would find travel to unfamiliar places difficult and distressing. The best way for them to spend time with their maternal grandparents, is for Mr and Mrs Hick to visit Adelaide.
On 11 October 2023, Mr Hick provided an up-to-date Police Certificate dated 17 February 2023 confirming that his only conviction was theft by employee.[22]
[22] Ibid T23 - Attachment Q1: Email from visa applicant to the Department (dated 11.10.2023), 68; T4 - Attachment A: Police Certificate (17.02.2023), 28.
On 10 November 2023, Mrs Hick provided a letter of support, in consideration of his visa application, to the National Character Consideration Centre of the Department of Home Affairs.[23]
[23] Ibid T27 - Attachment T: Letter of support from Visa Applicant’s wife (dated 10.11.2023), 72-3.
On 15 November 2023, Mr Hick provided an explanation in relation to the abovementioned news article in the context of the visa application: “…Having looked at the online article again, the only thing I would like to add is that it describes me as a Solicitor, that is not correct. I was only a Legal Executive.”.[24]
[24] Ibid T20 - Attachment O2: Email from visa applicant to the Department (dated 15.11.2023), 65.
On 21 December 2023, a delegate of the Minister for Home Affairs refused to grant Mr Hick the visa under s 501 of the Act.[25]
[25] Ibid T3 - Letter from Department to applicant – Notice of visa refusal (dated 22.12.2023), 17-27.
On 22 December 2023, Mr Hick received the letter of decision by email.[26]
[26] Ibid 14-6.
Mr Hick has been married to his wife since 20 April 1985.[27] He described his marriage relationship as ‘strong and stable’.[28] This does not appear to be consistent with the information provided to Judge Brown, at the time of his sentencing, which was to the effect that he was divorced from his wife.[29] This was put to Mr Hick. He explained that he had said in a pre-sentencing report interview words to the effect that he would not blame his wife if she divorced him, but this never happened. His remark must have been misunderstood.
[27] Ibid T12 - Attachment I, 49.
[28] Ibid.
[29] Ibid T6 - Attachment C, 32.
Mr Hick has 3 daughters and 2 sons. They all live in the UK, except for the Applicant, who is currently residing in South Australia.[30]
[30] Ibid T12 – Attachment I, 52.
The Applicant’s oldest son [Child A] was born in 2015 and the youngest son [Child B] was born in 2016.[31]
[31] Ibid 50.
Mr Hick maintains contact with the Applicant, Child A and Child B via “regular chats on Skype.”[32] This was confirmed by the Applicant.
[32] Ibid 51.
The Applicant said that for financial reasons it was more expensive to visit the UK with 2 children than it was for her parents to visit her in Australia. She was nevertheless thinking about visiting the UK in the next couple of years, but as yet, there were no concrete plans to do so.
Mr Hick says that he is currently diagnosed with a high blood pressure condition and is taking medication for this.[33] There are no other health concerns disclosed.
[33] Ibid 55.
Mr Hick’s criminal record of convictions is annexed hereto and marked “B”.
LEGISLATIVE FRAMEWORK
Does Mr Hick Pass the Character Test?
Mr Hick was sentenced by Judge Brown to a term of imprisonment of 32 months.[34]
[34] Ibid T4 - Attachment A, 28; T5 - Attachment B, 29; Attachment C, 30-2.
The Tribunal finds that he has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed. The Tribunal must therefore consider whether to exercise the discretion to refuse the visa.
Should the visa application be refused under section 501(1)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[35]
[35] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[36]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[37]
[36] [2018] FCA 594.
[37] Ibid [23].
OFFENDING HISTORY
Mr Hick’s criminal record as produced by the National Police Chiefs’ Council is outlined at Annexure B.
Mr Hick has been convicted of one very serious offence, that was in 2013. The pattern of conduct underlying that conviction was however, spread over an extended period from 2005 to 2012. The conduct was deliberate, elaborately camouflaged and premeditated.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Mr Hick’s offending is very serious. It was perpetrated over an extended period of time. It was pre-meditated. It was the subject of elaborate attempts at camouflage. It was only after the Applicant was made redundant, that his protracted fraud was detected. Had he not been made redundant, there is nothing to suggest that the fraud would not have continued. The fraud involved a very serious breach of trust.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Mr Hick clearly does not pass the character test.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
Mr Hick had no prior convictions. Indeed the sentencing Judge remarked on his previous good character. The gravity of his offending is set out in the remarks of the sentencing Judge. An early guilty plea secured a 1/3 reduction in his sentence. Even so, he was still sentenced to a lengthy prison term. This is indicative of the seriousness of the case.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Mr Hick engaged in a course of conduct between 2005 and 2012 which resulted in his conviction. In the sense that his was a long-term course of conduct, which was both ended and detected, by accident, it was more serious with each successive repetition.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of this conduct is very serious. It seems that the individuals who were the targets of Mr Hick’s fraud, were spared the financial consequences of his actions. This may have been a matter of good fortune rather than design. The loss was ultimately borne in part by Mr Hick, and possibly his employer or their insurers. The effect is broader than just financial. The impact on his employer’s professional reputation is difficult to quantify, although they are still trading. The impact of his offending on the confidence that the broader community feels in placing trust in professional advisers, is also relevant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of this.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no evidence of this.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no doubt that this offending, if committed in Australia would constitute a serious criminal offence.
I do not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily in favour of refusal to grant the visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; andc)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
If Mr Hick were to reoffend, the consequences would be extremely serious. The applicant has been convicted of serious dishonesty offences. The level of tolerance for such offending is very low.
Likelihood of engaging in further criminal or other serious conduct
Mr Hick is seeking a visitor visa. If granted, he and Mrs Hick would be visiting Australia for a period of 3 to 4 weeks.
The short, proposed duration of Mr Hick’s stay would afford him a very limited opportunity to reoffend. Based on his past offending, this would certainly not permit him sufficient time to perpetrate a fraud. Whether he may commit some other offence of dishonesty is a different question. There is, however, no evidence to suggest that this would be likely. He seems to have no pressing financial problems.
The Applicant claims that he is reformed. He has not reoffended.
The Applicant has been in stable employment since his release from prison. He is in a stable family environment with Mrs Hick, his adult children and his grandchildren. Any reoffending by him, would place all of this in jeopardy.
He is planning to travel with Mrs Hick and to stay with their family. These are also protective measures.
Given that the Applicant is only visiting Australia for a very short period, his risk of reoffending in that time is extremely low.
Conclusion: Primary Consideration 1
In all of the circumstances, Primary consideration number one is neutral.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence of any such conduct.
Conclusion: Primary Consideration 2
This consideration is neutral.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Mr Hick’s daughter – the Applicant, lives in Australia. Her husband G.C and her 2 sons, Child A (aged 8½) and Child B (aged 7½), live in Australia.
The boys suffer from autism which makes it difficult for them to travel to the UK.
Mr Hick has disclosed no other connections to Australia. He has not visited here before.
Conclusion: Primary Consideration 3
This consideration weighs against refusal to grant the visa.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child A is aged 8 ½ .
(b)Child B is aged 7 ½.
Mr Hick has never performed a parental role for the boys.
With the brief exception of their visit to the UK some time ago to visit him, all communication with the boys has been electronic. Whether the visa is granted or not, this will continue to be the case. His proposed visit is very brief.
The proposed visit is likely to be of benefit to the boys. They would be able to spend some time with both of their maternal grandparents. This would certainly be much less difficult for the boys, than them having to travel to the UK.
Conclusion: Primary Consideration 4
Having regard to all the above, primary consideration 4 weighs strongly against refusal to grant the visa.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[38]
[38] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.Mr Hick’s criminal record as set out in Annexure B
b.the other matters set out above
Conclusion: Primary Consideration 5
Primary consideration 5 weighs in favour of refusal to grant the visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision:
This Other Consideration is neutral.
(b) Extent of Impediments if Removed
This Other Consideration is neutral.
(c) Impact on victims
This Other Consideration is neutral.
(d) Impact on Australian business interests
This Other Consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 is neutral.
Primary consideration 2 is neutral.
Primary consideration 3 weighs against refusal
Primary consideration 4 weighs strongly against refusal.
Primary consideration 5 weighs in favour of refusal.
Other Considerations (a), (b), (c) and (d) are neutral.
The Tribunal now must evaluate the ascribed weight of the Primary and Other Considerations to determine whether the discretion to refuse to grant his visa application pursuant to s 501(1) of the Act, should be exercised.[39]
[39] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
The Applicant’s offending is very serious.
He claims to be reformed. He has not reoffended since being release from prison.
He was previously a person of good character according to the sentencing Judge.
The best interest of Child A and Child B is a significant factor. When weighed against the remaining Primary and Other Considerations, there is, in my view, another reason not to exercise the discretion to refuse to grant his visa application.
I am satisfied that it is strongly in the boys’ interests that they both have contact with their maternal grandparents and that their day to day living routine should be disturbed as little as possible, in the process.
The brevity of the proposed visit and the constant oversight of Mr Hick by his family, in my view, makes the risk of him reoffending negligible.
In my view, the proper application of the Direction favours the Tribunal not exercising discretion to refuse to grant the Visa. I find that there is “another reason” to revoke the original decision.
DECISION
The decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
..............................[sgnd]...............................
Associate
Dated: 24 May 2024
Date of hearing: 20 May 2024 Advocate for the Applicant:
Self-represented
Advocate for the Respondent: Alex Chan
(Sparke Helmore)ANNEXURE A – LIST OF EXHIBITS
Exhibit no.
Lodged by
Document
1
Applicant
Applicant’s Statement of Facts, Issues and Contentions
2
Respondent
1. Respondent’s Statement of Facts, Issues and Contentions
2. Annexure A – Disciplinary Record
3
Respondent
G-Document
4
Applicant
Statement of Martin Hick (undated)
ANNEXURE B – APPLICANT’S OFFENDING HISTORY
Court
Court Date
Offence
Court Result
Liverpool Crown
16.09.2023
Theft by Employee
Imprisonment 32 months
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
0
7
0