Collins and Minister for Immigration and Multicultural Affairs - [2002] AATA 532

DECISION AND REASONS FOR DECISION [2002] AATA 532

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/339

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ROHAN HUGH COLLINS
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon RNJ Purvis QC, Deputy President

Date2 July 2002
PlaceBrisbane

Decision The decision under review should be set aside and the matter remitted to the respondent for further consideration with a direction that the visa applicant satisfies the character test.

(Sgd)
The Hon RNJ Purvis QC
Deputy President
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – Prospective Marriage Visa – character test – breaches of immigration laws - whether discretion should be exercised in favour of the applicant – whether visa should be granted despite failure of character test

Migration Act 1958 ss 501(1), 501(6)(c)(ii)

Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Re Lackmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini and Minister for Immigration and Multicultural Affairs (1999) 90 FCA 583

REASONS FOR DECISION

2 July 2002 The Honourable RNJ Purvis QC, Deputy President

This is an application for review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a Prospective Marriage Subclass 300 Visa to Ms Donna Tracy Michelle Robey ("the visa applicant") on the ground that she fails the character test and that the available discretion should not be exercised in her favour. The application for review was lodged with the Tribunal by Mr Rohan Collins ("the review applicant"), who is an Australian citizen and is the fiancee of the visa applicant.
This matter was heard on 17 September 2001 in Brisbane. The applicant was represented by Mr G Lombard, of George Lombard Consultancy Pty Ltd. The respondent Minister was represented by Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldon. The then Presiding Member being no longer able to determine the matter, the parties consented to the Tribunal being reconstituted and a decision reached on the basis of the transcript of the proceedings being read together with the exhibits and the submissions made on behalf of the parties.
The following documents were tendered in evidence before the Tribunal:
Exhibit 1:       "T" documents
Exhibit 2:       Statutory Declarations from:
  - Bernard Michael Collins (dated 13 August 2001)
  - Audrey Isabella Collins (dated 13 August 2001)
  - Rohan Collins (dated 13 August 2001)
  Statement from Donna T M Robey (dated 16 August 2001)
  Certificate of Pregnancy Termination
Exhibit 3:       Photo Album
Exhibit R4:     Report of Interview with Ms Robey at Brisbane Airport
Exhibit R5:     Report - visa applicant's movements in and out of Australia
The visa applicant, who was born on 24 June 1970, is a citizen of the United Kingdom. On 5 May 1998, Ms Robey was granted a twelve month Working Holiday Maker Visa Subclass 417. On 25 March 1999, at Cairns, the visa applicant was granted an extension of the life of that visa until 9 July 1999. The visa applicant was, therefore, required to depart Australia on or before 9 July 1999.
Prior to the visa applicant's voluntary departure from Australia in April 2000, Ms Robey tampered with her visa in an attempt to change the expiry date on her visa from 9 July 1999 to 9 July 2000. It is this act, coupled with the length of the visa applicant's overstay in Australia and the fact that she worked without holding a current visa, that forms the basis for the respondent's finding that the visa applicant is not of good character under s 501(6)(c)(ii) of the Migration Act 1958.
EVIDENCE PRESENTED AT THE HEARING – THE FACTUAL SITUATION
The visa applicant gave evidence at the hearing of this matter by telephone. The review applicant and his mother attended the hearing and tendered written and oral evidence. The review applicant's father attended the hearing, had tendered on his behalf a written statement but was not required to give oral evidence nor was he required for cross-examination. The respondent did not call any oral evidence at the hearing.
Ms Robey and Mr Collins gave evidence that they had met whilst working at a remote mining camp at Phosphate Hill, three hours east of Mt Isa. The couple met at a party in April 1999; and commenced a relationship in June 1999, whilst they were on leave from the mining camp. The relationship continued after their return to the camp, the couple managing to secure shared accommodation enabling them to live together on site.
In August 1999, the couple left their employment at Phosphate Hill and moved to Brisbane. They took up residence in the review applicant's house in Everton Park, where they continued to live together until the visa applicant voluntarily departed Australia on 10 April 2000.
Shortly after their return to Brisbane, the visa applicant discovered that she was pregnant. Ms Robey told the Tribunal of the emotional trauma she suffered as a result of the decision to terminate her pregnancy. Ms Robey stated that she and Mr Collins had discussed their positions in relation to the pregnancy, before deciding that the best course was to have the pregnancy terminated. Ms Robey told the Tribunal that although she was in love with Mr Collins she was reluctant to bring a child into the world until she was physically and mentally ready for such a commitment. She indicated that she was concerned about having a child with the review applicant so soon into their relationship, and as she put it, "I'm the kind of old fashioned girl where I would love to be married before I have a child". (Transcript Page 33)
The pregnancy was terminated on 28 September 1999 at the Planned Parenthood of Australia's Brisbane Clinic. The certificate provided to the Tribunal by the applicant indicates that at that time Ms Robey was six to seven weeks pregnant.
In her evidence to the Tribunal, Ms Robey indicated that she initially overstayed her visa because of her new relationship with the review applicant. Ms Robey stated that she had fallen deeply in love with Mr Collins and that their feelings for each other had developed quickly. Ms Robey, in cross-examination, informed the Tribunal that prior to the expiration of her visa she had made some telephone calls and enquires to ascertain the cost and availability of flights back to England.
Ms Robey advised that she had not intended to overstay her visa to the extent that she had done, explaining that she had overlooked her visa problems due to the emotional stress and trauma she was suffering as a result of the abortion. As she said in evidence when asked "What were your thoughts about your visa at this time?" she replied "I didn't have any thoughts. I – the whole situation is mind blowing. It was – it was very hard for us to come to terms with and it was just too emotionally difficult for me to even think of anything else at that time." (Transcript Page 24)
The visa applicant gave evidence that she had worked in Brisbane during December 1999, January and February 2000, in order to obtain sufficient funds to allow her to return to England. Ms Robey stated, in her oral evidence and in written material before the Tribunal, that she knew that she needed to return to England so that her "visa status could be sorted out" and she could "make amends" for her actions.
Ms Robey gave evidence that Mr Collins had been unaware of her "visa status" and of her breaches of the immigration laws. She testified that Mr Collins had once, early in their relationship, inquired as to her immigration status and that she had informed him that she held a Working Visa. Both gave evidence that Mr Collins first heard of the visa applicant's visa status when she contacted him by telephone whilst on route to England. Although there was some confusion as to when Ms Robey spoke to the review applicant, the Tribunal accepts that Mr Collins did not know of the visa applicant's breaches of immigration laws until after she had departed Australia.
Ms Robey stated that, a couple of days prior to her scheduled departure from Australia, she woke with a fright, realising the true extent of the overstay on her visa. She said that, "in a panic", she attempted to change the expiry dates on the visa, initially by hand and then with a typewriter. Ms Robey testified that she realised the inappropriateness of this act almost immediately and regretted her actions. As she said in her evidence when asked "I want to take you forward now to Friday 7 April. Can you explain to the Tribunal what you did on the evening of 7 April?" she replied:
"Well, I had already – at this stage I had already booked my ticket which was the Monday beforehand I had booked my ticket to return back to the UK. And after everything that had happened it still hadn't dawned on me the implications of the fact that I have overstayed my visa. I just awoke in a panic and it is really hard to explain. I just woke up in the middle of the night, I panicked. I couldn't believe what I had done and how I was going to get out of it. And in the midst of panic I stupidly attempted to change the dates on my visa."

She was asked "And how did you do that?" and replied "Initially by hand, but we also have a typewriter in the house at the time". It was put to her "So would it be true to say that these alterations were changes you made to extend your stay in Australia?" to which she replied:

"No, no, definitely not. I was going back to the UK, but I had to come back, I had to make a move and come back to the UK. It was something stupid in hindsight, I should have left and not done anything, and faced the consequences at the time, that they were definitely not for any intention for me to stay in Australia, no." ….. "Because I panicked. It got to the point where the emotion and trauma of the termination had finally sunk in and I had been in a position where I could deal with that, but then all the reality of everything that had gone on in my overstay, it was pure panic, and it is something that to this day, and for the last 17 months that I have left Australia, I have regretted. And there is not a day that goes by where I can't believe what I have done." (Transcript page 25)

When the visa applicant departed Australia on 10 April 2000, she was stopped by immigration officials and questioned about the changes made to her visa. Ms Robey admitted to having made the changes and explained that she had overstayed her visa to be with her fiancee. These comments and others are recorded in the immigration inspector's report (Exhibit R4), which was the subject of some discussion during the hearing. The respondent's solicitor advised the Tribunal that inspector's reports are prepared from handwritten notes taken during the interview by the immigration officer. It is unclear whether there is a delay between the interview and the typing up of those notes. However, the Tribunal is satisfied that the discrepancies between the notes made by the immigration officer and the evidence of the visa applicant do not impact upon the visa applicant's credibility. An instance of such a discrepancy is where there was a notation that Ms Robey was returning to England because her mother had had an accident and the evidence of the visa applicant that she had learnt that her mother was in hospital. The versions are not that far removed from one another and certainly not such as to place doubt on the honesty of Ms Robey.

THE LEGISLATIVE FRAMEWORK AND PRIMARY CONSIDERATIONS

The decision to refuse Ms Robey's application for a Prospective Marriage Subclass 300 Visa was made pursuant to s 501(1) of the Act, by a delegate of the Minister on 22 March 2001. The refusal to grant the visa was based on a finding that the visa applicant failed the character test in s 501(6)(c)(ii) of the Act. The Migration Act 1958 ("the Act") relevantly provides:
"501 (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the 'character test' if: …
(c)having regard to either or both of the following:
(a)the person's past and present criminal conduct;
(b)the person's past and present general conduct:
the person is not of good character; …"

It is noted by the Tribunal that the words "good character" used in Section 501 of the Act refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate an objective assessment being made and are to be established as a matter of fact (Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 it was stated at 324:
"The concept of 'good character' in section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities is so deficient as to show it is for the public good to refuse entry."
In Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 the words "disposition rather than general reputation" are used to define character.
A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued by the Minister pursuant to the provisions of s 499(1)(a) of the Act.
The relevant Direction made under s 499 of the Act is Direction 21 signed by the Minister under date 23rd August 2001. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under s 501 of the Act. It is to be given due consideration (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCA 583).
Direction 21, as here relevant, provides:
"PART 1 – APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test……
1.2If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa …..
1.3There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).
………
Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct.
1.7Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including any evidence of rehabilitation and recent good conduct.
……..
· Subparagraph 501(6)(c)(ii) – past and present general conduct
1.8In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test.
……..
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
……..
1.10In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
·whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
·the seriousness of the offence with which the applicant has been charged; or
(b)resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion.
…….
PART 2 – EXERCISING THE DISCRETION
2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2.The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations…..Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
PRIMARY CONSIDERATIONS
2.2In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
……..
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(a)The seriousness and nature of the conduct
2.6It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
…….
(c)…… providing certain false or misleading information about a marital, de facto or interdependency relationship ….. or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…….
(b)Likelihood that the conduct may be repeated (including any risk of recidivism)
2.10It is the Government's view that the person's previous general conduct is highly relevant to assessing the likelihood of an offence and risk of recidivism.
…….
(c)General deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…….
Expectations of the Australian community
2.12The Australian community expects non-citizens to respect and obey Australian laws whilst in Australia……Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…….
The best interests of the child
2.13This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…….
OTHER CONSIDERATIONS
2.17When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business or other ties to the Australian community;

Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
'The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.'
Article 17.1 provides that:
'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.'
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
·in assessing the compassionate claims of an Australian partner …, decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully residing in Australia…, including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
……
(h) any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or a permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; …"

The term "general conduct" in s 506(c)(ii) has received some judicial consideration. In Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 at 470, the Federal Court stated:
"That leaves for consideration just what is meant by 'general conduct' when, in the same context, this expression is used to distinguish conduct that is not 'criminal conduct'. In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading 'general conduct', is conduct in general. The root meaning conveyed by the adjective 'general', as is made clear by the New Shorter Oxford English Dictionary (1993), is the idea of universality. … We do not think there is any warrant for extracting, from the broad word 'general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as the person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."

CHARACTER OF THE VISA APPLICANT

Assessment of the character of the visa applicant is to be made having in mind the prerequisites earlier mentioned in these reasons. It is to be an objective assessment.
On the basis of the whole of the evidence before it, the Tribunal is not persuaded that the visa applicant is not of good character. She did overstay her visa but the circumstances of her meeting Mr Collins, becoming pregnant and experiencing the abortion, all provide some explanation, if not excuse, for this act. She did work but her original visa permitted her to do so. The alteration to her passport and the visa expiry date was not done in order for her to stay longer in Australia or assist in her entering Australia. It was, as she admits, an unwise act done more to minimise any problem leaving the country than otherwise.
Ms Robey admitted her above acts when confronted by an Immigration Officer and has expressed remorse for her misbehaviour. As the Tribunal sees the position, Ms Robey is not one who is disposed to act illegally, her "enduring moral qualities" are not deficient such as to show that it is "for the public good to refuse entry". She does not fail the character test.
THE AVAILABLE DISCRETION

The respondent contends that the applicant fails the character test on the basis that she has breached Australian immigration laws by overstaying her visa, working in Australia without a valid visa and by attempting to change the expiry date on her visa. The visa applicant admits these breaches and in the event of a finding of not good character being made, asks the Tribunal to exercise its discretion to grant the visa to her. Even though the Tribunal is satisfied that Ms Robey does not fail the character test, it is appropriate to deal with the matters raised in relation to the discretion.
The review applicant contends that the visa applicant has provided an explanation for her breaches of the immigration laws and that the Tribunal should find that the visa applicant does not pose a risk to the Australian community. It was submitted that the visa applicant's "poor character", if it be so, arose primarily from the stress and emotional trauma she suffered as a result of having a pregnancy terminated, and that it was not likely that she would commit any further breaches of Australian immigration or domestic laws.
The review applicant further submitted that he and his family would suffer hardship if Ms Robey was not granted the visa. The review applicant and his mother, and his father in his written statement, gave evidence as to the assistance he provides to his parents. Both Mr and Mrs Collins are elderly and Mr Collins is in poor health. The review applicant is the only child residing near his parents and, therefore, he has taken on the role of caring for them and assisting with domestic chores. If the visa is not granted, the review applicant may have to move to England to be with his fiancee. Mrs Collins gave evidence that if the visa was not granted she and Mr Collins would be unable to travel to England to see their son and prospective daughter-in-law or to attend the wedding. In contrast, Ms Robey's parents are relatively healthy and could travel to Australia to see their daughter and prospective son-in-law and attend the wedding.
PRIMARY CONSIDERATIONS
As indicated above, when deciding whether to exercise the discretion to grant the visa, the Tribunal is to give the Ministerial Direction due consideration and have regard to the primary considerations: the protection of the Australian community; community expectations; and the best interests of any children. The latter consideration is of no relevance in this application.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Ministerial Direction outlines the importance the Government places on the protection of the Australian community from the risk of crime and disorder (see par 2.4). In determining the potential level of risk the grant of a visa may cause, the decision-maker is to have regard to:
(a)the seriousness and nature of the conduct;
(b)the risk of recidivism; and
(c)general deterrence.

THE SERIOUSNESS AND NATURE OF THE CONDUCT

The Tribunal has no hesitation in stating that breaches of Australian immigration laws are serious matters and are not be encouraged or ignored (see Re Lackmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at par 35; and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277). However, in the present application, there is evidence that the visa applicant was suffering from emotional stress which contributed to her breaches of the immigration laws. Although the visa applicant initially overstayed her visa so that she could be with Mr Collins, her extended stay was contributed to by her unplanned pregnancy and the termination procedure that followed.
The Tribunal heard evidence from the visa applicant as to her emotional state before and after the abortion. The visa applicant was distressed by the procedure and, as earlier stated, the Tribunal accepts her explanation that this trauma caused her to neglect the issue of her visa's expiration. The Tribunal also accepts the visa applicant's explanation that, when she did realise the true extent of her overstay, she attempted to vary the expiry date on the visa in a "fit of panic". The Tribunal does not find that Ms Robey varied the document with an intent to commit a fraud upon, or to misled with a criminal intent, the Australian immigration authorities. The Tribunal accepts that Ms Robey was in a state of panic at the time of this breach and that she acted irrationally, foolishly and in haste. Ms Robey testified that she realised immediately upon amending the visa that she had acted in a foolish manner and she was initially too embarrassed to confess her actions when presenting her passport to the immigration officer.
The Tribunal accepts the visa applicant's evidence that she worked in December 1999 and January-February 2000, despite the fact that her visa had expired, so that she could save enough money to return to England. Ms Robey testified that she had realised that what she had done by overstaying her visa was wrong and that she had wanted to travel back to England so that she could "make amends".
The Tribunal recognises that Ms Robey returned to England voluntarily. The immigration authorities had not, prior to her departure day, detected the breach of her visa conditions - she chose to leave Australia and return to England of her own accord. This conduct confirms an intent on the part of the visa applicant to rectify her visa status. The Tribunal does not find the conduct of Ms Robey to be "very" or "extremely" serious in the context of the Direction.
RISK OF RECIDIVISM
There was no evidence before the Tribunal to suggest that Ms Robey has a criminal record, or that there is any other past conduct which suggests that she poses a risk to the Australian community. The refusal of her visa application relates only to the breaches of the immigration laws discussed in this decision. There is no other evidence that Ms Robey's "enduring moral qualities" are not of a high standard.
The Tribunal has already found that Ms Robey's conduct was in part on account of the emotional strain that she suffered as a result of the unplanned pregnancy and abortion. This conduct appears to the Tribunal to be out of character with the visa applicant's general conduct and the Tribunal does not consider them to be indicative of any anti-moral disposition on her part.
The Tribunal is satisfied that there would be very little risk of recidivism by the visa applicant if she were granted the visa. Both applicants would realise that anything short of complete co-operation with the immigration authorities in future would almost inevitably result in prosecution, fine or imprisonment.
GENERAL DETERRENCE
Another issue in relation to the exercise of the discretion to grant a visa in this case is whether there would be a substantial risk of sending the wrong message to other potentially dishonest visa applicants if Ms Robey's conduct does not result in a refusal to grant her a visa.
The Tribunal is satisfied that the factual situation in this case is peculiar to its own circumstances. A decision to grant a visa is unlikely to have precedent value in relation to other persons.
COMMUNITY EXPECTATIONS
It is the expectation of the Australian community that those from overseas who are granted entry into Australia will comply with the community standards and obey the laws of the country. Clearly the community would expect that where a person has committed "serious" offences then that person should be refused entry into Australia.
However, the community would also expect that, in appropriate cases, a decision-maker would have regard to all relevant circumstances raised by a visa applicant in support of an application for a visa, and, where there is little risk to the Australian community in granting a visa, that the decision-maker would give those circumstances appropriate weight and consideration.
In this application, the visa applicant poses little, if any, risk to the community. There are a number of other considerations that weigh heavily in favour of granting a visa to Ms Robey.
OTHER CONSIDERATIONS
The Tribunal accepts that the review applicant and his family will suffer emotional hardship if Ms Robey is refused a visa. The Tribunal heard evidence of the support the review applicant provides to his elderly parents, and the emotional hardship they will face if the review applicant is forced to move to England to be with his fiancee.
The Tribunal further finds that Mr Collins was unaware of the visa applicant's breaches of the immigration laws throughout their relationship in Australia, he only learning of the breaches sometime after Ms Robey had cleared immigration at Brisbane International Airport on 10 April 2000.
Mr Collins has shown his commitment to the visa applicant since her departure from Australia. He has maintained regular contact with her and he has travelled to England for a number of months to be with her.
The review applicant's family appear to be very supportive and fond of the visa applicant. Mrs Collins spoke warmly of Ms Robey in her evidence. The Tribunal has no doubt that the commitment between the review applicant and the visa applicant is genuine, and that, if granted a visa, the visa applicant would be welcomed into a supportive family structure.
The Tribunal is mindful of the fact that Ms Robey may go on to seek a more permanent visa status if she is granted a Prospective Marriage Visa, but the Tribunal is satisfied that Ms Robey's past conduct was aggravated by the circumstances that she found herself in and that she is otherwise of good character. The Tribunal considers her actions to have been isolated and unlikely to be repeated.
DECISION
Even if a finding as to character had not been made as aforestated, the Tribunal would be satisfied that there are sufficient grounds to warrant the exercise of its discretion in favour of Ms Robey.
Accordingly, the decision under review should be set aside and the application remitted to the respondent for further consideration with the appropriate direction.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis QC, Deputy President
Signed:         Sarah Oliver
  Associate
Date of Hearing  17 September 2001
Date of Decision  2 July 2002
For the Applicant  Mr G Lombard,
  George Lombard and Associates
Solicitor for the Respondent    Mr P O'Higgins
  Blake Dawson Waldron