DAHLGREN and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
[2010] AATA 351
•12 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 351
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1781
GENERAL ADMINISTRATIVE DIVISION ) Re SUZANNE MARY DAHLGREN Applicant
And
DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date12 May 2010
PlaceAdelaide
Decision The Tribunal sets aside the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Tourist (Class TR) visa – decision to refuse grant of visa where visa applicant fails character test – substantial criminal record – Ministerial Direction No 41 – primary and other considerations – whether other considerations can outweigh primary considerations – visa applicant married to applicant who is Australian citizen – decision under review set aside
Migration Act 1958 ss 499(1), 501(1), 501(6)(a), 501(7)(c)
Ministerial Direction No 21
Ministerial Direction No 41
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Shi v Migration Agents’ Registration Board (2008) 235 CLR 286
Minister for Immigration and Ethnic Affairs v Daniele [1981] 5 ALD 135
Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) FCAFC 114
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Harris and Minister for Immigration and Citizenship [2009] 110 ALD 690
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082
Dyson Holdings Ltd v Fox [1976] 1 QB 503REASONS FOR DECISION
12 May 2010 Senior Member R W Dunne introduction
1. This is an application to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship made on 16 April 2009 to refuse the grant of a Tourist (Class TR) visa to Roy Clyde Dahlgren (“visa applicant”). The application for review was lodged by the visa applicant’s wife, Suzanne Mary Dahlgren (“applicant”). The visa applicant was refused a visa on the ground that he did not pass the character test under s 501(1) of the Migration Act 1958 (“Act”), in particular, that the visa applicant has a substantial criminal record as defined by s 501(7)(c) of the Act. In considering whether to exercise the discretion to refuse to grant the visa applicant a visa, the delegate applied Ministerial Direction No 21 (“Direction No 21”).
2. At the hearing, Ms Dahlgren represented herself (by telephone) and was assisted by her daughter, Ms Jaynie-Lea Bryant. Mr Paul d’Assumpcao (from the office of the Australian Government Solicitor) appeared for the respondent. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1), together with the following documents:
·documents provided by the applicant to the respondent (Exhibit A1);
·applicant’s Statement of Facts, Issues and Contentions (Exhibit A2); and
·respondent’s Statement of Facts, Issues and Contentions (Exhibit R2).
issue for the tribunal
3. It is conceded by the applicant in her Statement of Facts, Issues and Contentions that the visa applicant has a “substantial criminal record” as defined in s 501(7)(c) of the Act and he therefore does not pass the character test. The discretion to refuse the grant of a visa to the visa applicant is thus enlivened.
4. The issue for the Tribunal presently is whether the discretion under s 501(1) of the Act to refuse the grant of a visa to the visa applicant should be exercised.
legislative background
5. Under amending legislation that came into effect on 1 June 1999, the previous regime relating to visa refusal or cancellation was significantly changed. Central to the new scheme is the “character test” which applies to all visa applicants and holders. The character test is contained in s 501 of the Act, which relevantly reads:
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(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.
Note: Character test is defined by subsection (6).
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or…
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
6. Under the amending legislation, the power of the Minister to make policy directions was expanded under s 499 of the Act, so that specific directions can be made which are binding on decision-makers and tribunals reviewing decisions. Section 499 of the Act relevantly reads:
“499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
….
(2A)A person or body must comply with a direction under subsection (1).
…”
7. Pursuant to s 499, on 3 June 2009, the Minister gave “Ministerial Direction No 41 – Visa refusal and cancellation under s 501” (“Direction No 41”). Direction No 41 superseded Direction No 21 and came into effect on 15 June 2009. Thus, in considering the issue in the present case the Tribunal must have regard to the provisions of Direction No 41. In reviewing the delegate’s decision, the Tribunal must conduct a re-hearing, that is, hear the matter afresh. The Tribunal may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before it, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Shi v Migration Agents’ Registration Board (2008) 235 CLR 286.
background
8. The factual background to this case is largely not in dispute and may be taken from the Statements of Facts, Issues and Contentions of the applicant and the respondent. Ms Dahlgren was born in Broken Hill on 19 September 1949 and is an Australian citizen. The visa applicant was born in the United States of America on 17 January 1961. Ms Dahlgren has one child, Jaynie-Lea Bryant, and three grandchildren aged 23 years, 19 years and 17 years.
9. The visa applicant developed a dependence on alcohol and prescription medication when he was in his teens. He abused alcohol and drugs for a period of many years before 2001/2002. He had one child, Shelby Dahlgren, who was born on 29 December 1988, but died on 22 November 2008. He met Sarah Stepp in 1998 and had a brief romantic relationship, based largely upon a shared addiction to alcohol and prescription medication. In addition, Ms Stepp suffered from a mental illness, and the visa applicant had tried unsuccessfully to end his relationship with her.
10. On 16 April 2001, there was a “party” at the visa applicant’s residence in the Glade Creek community of Cumberland County, Tennessee in the United States. At the party there were five people present, including the visa applicant, Ms Stepp, Ms Barbara Harris, Mr Gene Randolph and Shelby Dahlgren (who was then 12 years old). The group had been drinking beer, whiskey and “moonshine” and all were intoxicated, except the visa applicant’s daughter. At some point during the evening, Ms Stepp threatened the visa applicant and she was subsequently shot. Although there was some confusion about how Ms Stepp was shot, the visa applicant acknowledged responsibility for the shooting. Ms Stepp was paralysed and the visa applicant took her to the White County Hospital. She was later transferred to other medical facilities and subsequently died of pneumonia on 10 July 2001. Following the shooting, the visa applicant was charged. It appears the original charge was for aggravated assault (Exhibit A1 at page 14), but this was “superseded” to a charge of first degree murder and the visa applicant was remanded in custody. It appears he posted bail and was shortly thereafter released.
11. In May 2000, Ms Dahlgren met the visa applicant while she was travelling around the United States. Upon returning to Australia in August 2000, she remained in touch with the visa applicant and his daughter, Shelby. After the shooting in April 2001, the visa applicant contacted Ms Dahlgren. She returned to the United States where she and the visa applicant formed a relationship with each other. They married in the United States on 9 October 2001. After their marriage, it appears the visa applicant remained on bail until the shooting of Ms Stepp came before the Criminal Court for Cumberland County, Tennessee on 24 June 2002. In the Court, the visa applicant pleaded guilty to the charge of voluntary manslaughter. At the Court hearing, counsel for the visa applicant tendered a document entitled “DEFENDANT’S STATEMENT OF MITIGATING FACTORS TO BE INCORPORATED AND ATTACHED TO THE JUDGMENT OF CONVICTION” (Exhibit A1 at pages 44-47). Extracts from the Statement relevantly read:
“…
3. The medical records of Sarah Stepp indicate:
A.That she had suffered from hallucinations, suicidal ideations and major depression for more than a decade;
B.That she had attempted suicide on at least three (3) separate occasions;
C. That she suffered from alcohol dependence;
D.That she had been declared to be disabled by the Social Security administration from a combination of injuries sustained in a automobile accident in 1987, her depression, and the alcohol dependence.
…
5. The Defendant and the victim had been romantically involved.
6.On April 16, 2001, the Defendant had a party at his home. At the party was the Defendant, the victim, Ms. Barbara Harris, the Defendant’s 12 year old daughter, Shelby Dahlgren and Mr. Gene Randolph. Drinking beer, whisky, moonshine or a combination thereof intoxicated everyone present, except Shelby Dahlgren.
7.At the time of incident, Mr. Gene Randolph was passed out and thus did not witness the incident.
8.Both Shelby Dahlgren and Barbara Harris have given conflicting and confusing statements. Specifically, Shelby Dahlgren has given at least three (3) statements and Barbara Harris has given seven (7) statements.
9.All statements given by Shelby Dahlgren and Barbara Harris have consistently stated as follows:
A. Everyone (except Shelby Dahlgren) was very intoxicated at the party.
B.Prior to the shooting, the parties ran out of beer and that the victim Sarah Stepp became very agitated and upset with such.
C.Prior to the shooting, Barbara Harris and Shelby Dahlgren danced with the Defendant and then sat in his lap causing the victim to become even more agitated and upset.
D.Sarah Stepp poured part of a beer and the remaining moonshine over the head of the Defendant as he sat in his chair.
10.Shelby Dahlgren also stated that:
A.She and Barbara Harris went into her room when the victim became upset.
B.She heard the victim shouting that she was going to kill herself, but she was going to kill the Defendant first.
11.Barbara Harris also stated that before the shooting she heard the Defendant state that she needed, ‘to shut up or he would shut her up.’ She also stated the Defendant was pointing the gun at the deceased prior to the shooting, but later recanted this statement.
…”
12. The visa applicant entered into a plea agreement with the State – which was ultimately accepted by the Court – to the effect that he would be charged with voluntary manslaughter with a sentence of 8 years. The plea was conditional upon the visa applicant receiving a mitigated offender classification of 20 percent for his eligible release date. However, there was no guarantee that the visa applicant would not serve more than 20 percent of his sentence. The decision as to the visa applicant’s release date rested with the Parole Board. The visa applicant was released from incarceration on 23 October 2007.
evidence of ms dahlgren
13. It was Ms Dahlgren’s evidence that she wanted the visa applicant to be part of her family in Australia. He had had only this one problem with the law, which involved alcohol and drug use and 30 years of living in that lifestyle. Since then, his lifestyle had changed dramatically. He no longer drank alcohol, nor took drugs. While in prison, he had been helped by the Church and his lifestyle had turned around. He had previously been a member of a Christian family and he had turned to being a regular church-goer. Since his release in 2007, he had performed voluntary work for various organisations.
14. She said she had a close relationship with her daughter, Jaynie-Lea, and she was committed to coming back to Australia. The fact that she had been unable to do so had caused hardship and psychological problems for her daughter, who relied heavily on her mother’s support. She also wanted to spend time with her grandchildren, which depended on the credibility of her marriage to the visa applicant. The visa applicant had met her daughter, but not other members of her family. After the visa applicant was incarcerated in June 2002, she remained in the United States and applied for permanent residency. She returned to Australia in November 2003 and then went back to the United States in September 2005. When she returned to the United States, she obtained her employment documents from the United States immigration authorities and obtained employment with Hilltoppers Inc, as a direct support professional. She is still employed by Hilltoppers Inc, but in the capacity of a case manager. The visa applicant does not work at the moment, so she and her husband have no other income apart from hers. From her perspective, aside from having available financial resources, there is no reason why she cannot come to Australia.
evidence of ms bryant
15. Ms Bryant had travelled to the United States in 2007 and 2008 to meet the visa applicant. Prior to the travel, she had spoken to him on the phone and communicated by email. She had visited him in prison in April 2007 and had spoken to him prior to that in 2003 and in 2005. She was very close to and respected her mother. Her mother had some property in the United States, but had got rid of the old house that was situated on the property. She herself suffered from depression and anxiety. She had been abused by her ex-husband and had been on anti-depressants for most of her life. Because of this, she was anxious to spend her future life with her mother in Australia.
16. Her daughter, Jessica, wanted to see her grandmother and to meet the visa applicant, who she saw as a grandfather. Her mother would not be happy in Australia without her husband, who made her life a happy one. Her mother wanted to share that happiness with the rest of her family in Australia. During the period between 2003 and 2005, she called her mother three times per week. Although the conversations were short, she was able to discuss matters as much as possible with her mother over the phone.
cross-examination of visa applicant
17. In cross-examination by Mr d’Assumpcao, the visa applicant confirmed that he had not been in custody prior to his conviction in June 2002. He had been on a bond during this period. After the shooting in April 2001, a month passed before he was arrested and charged. He had been incarcerated for 5 years and 4 months and had been released early because of his “good days”. Currently, he was not subject to any parole conditions. When questioned about his alcohol abuse, he said he had started drinking when he was 9 or 10 years of age and then became a heavy drinker. He had been drinking spirits heavily since he was 16 or 17 years of age. He had started taking marijuana when he was 15 or 16 years of age, which he would mix with alcohol. He also took prescription medication and other illegal drugs. He took pain medication for a back problem that had started when he was 20 years old. The back problem had been caused by a car accident as a direct result of his drinking. He had been involved in four or five car accidents, but he was the only person present on each occasion. He had been taking anti-depressants whilst in prison, but was not longer taking them in October 2007. He had ceased drinking in 2002, but had slowed down before he entered prison. Both alcohol and drugs were freely available in prison. However, despite 30 years of drink and drugs, he went “cold turkey”. He passed all the urine tests that were required and, after three months, he had decided to give up his previous lifestyle.
18. Prior to the shooting, he worked for a vending company. This involved travel and he carried a pistol for his protection. He had firearms at home which he used for hunting. They were often not locked up, but he had no cause to use the firearms, except for hunting purposes. Although he drank heavily, he said he was not aggressive. He did not engage in fights that were associated with alcohol. Apart from the episode with Ms Stepp and apart from hunting, his use of weapons was only for clay pigeons or target practice.
consideration
Should the discretion under s 501(1) of the Act be exercised in favour of the visa applicant, taking into account the considerations outlined in Direction No 41?
19. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to refuse to grant a visa to the visa applicant in accordance with s 501(1) of the Act, the Tribunal must take Direction No 41 into account, as a guide to making its decision. (Direction No 41 is hereafter referred to, in brief terms, as the “Direction”). The Direction is an instrument made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers (including the Tribunal) in making decisions to refuse or cancel a visa under s 501. Part 1 of the Direction, comprising paragraphs 1 to 6 (inclusive), contains certain preliminary matters. Paragraph 5.1 sets out the objectives of the Act, which relevantly read:
“5.1 Objectives
(1)The objectives of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
…”
To facilitate the above objectives, the Direction provides direction to decision-makers with respect to performing functions and exercising powers under s 501 of the Act. The Direction makes clear that, in reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person concerned may cause to the Australian community; and
(b)the risk of that harm occurring.
20. Part 2 of the Direction comprises two further Parts. Part A provides directions on the application of the character test. As the applicant has conceded that the visa applicant does not pass the character test, Part A of the Direction is presently not relevant. Part B provides directions on the primary and other considerations that are relevant to determining whether it is appropriate, in the specific circumstances of the case, to exercise the discretion to refuse to grant or cancel the visa. The Tribunal will address the relevant considerations in Part B of the Direction in turn. In doing so, the Tribunal notes that only directly relevant considerations should be taken into account (see paragraph 9(2) of the Direction).
21. The four primary considerations in the Direction are as follows:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations.
First Primary Consideration – Protection of the Australian Community
22. In reference to the protection of the Australian community from criminal or other harmful conduct, particularly crimes involving violence, the Direction identifies two factors relevant to assessing the level of risk of harm to the community of the person’s entry into, or continued stay in, Australia.
23. Seriousness and Nature of the Conduct.The first of the factors is the seriousness and nature of the conduct (paragraph 10.1.1 of the Direction). The Direction makes clear that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. As to this, sub-paragraph 10.1.1(2) includes a detailed list of examples of offences which are considered by the Government to be serious. The first of these is murder, manslaughter, or any other form of unlawful killing.
24. Before the Tennessee Criminal Court the visa applicant pleaded guilty to manslaughter, which is a serious offence, being a crime involving violence of special concern to the welfare and safety of the Australian community. However, it seems clear from the sentencing transcript that there were problems with the State’s case against the visa applicant and there was likely to be some difficulty in securing a conviction against him. No doubt this was a factor in the negotiations for the plea agreement which led to the visa applicant entering a plea that allowed for a conviction and a sentence of 8 years, but conditional upon him receiving a mitigated offender classification of 20 percent for his eligible release date. The problems for the State have been acknowledged by the respondent in paragraph 21 of its Statement of Facts, Issues and Contentions. They include reference to the inconsistent statements provided by the visa applicant’s daughter and Ms Barbara Harris, and that the visa applicant himself was too intoxicated to recall some of the events. The problems also appear in the following exchange between the Court and counsel for the State, which appears at pages 14-15 of the sentencing transcript:
“…
GENERAL McKENZIE: I guess the State would just add for the record that in lieu of that fact pattern and the fact that our eye witness has gave [sic] several statements that conflict, and not having the knowledge of what the testimony would be at this point in time, the State would ask the Court to accept this plea agreement. And that it’s our position given the evidence and what you’ve heard here that this is a fair resolution and which the State would agree to accept.
COURT: And was the indictment for first degree murder?
GENERAL McKENZIE: The first original indictment was for an aggravated assault. It was then superseded to a first degree murder indictment. But given the testimony here and the witnesses’ statements and upon further investigation, the State feels that this is a resolution.
COURT: So voluntary manslaughter is generally considered to be a lesser included offense that the facts support the lesser offense. And it would appear that based upon what’s been said that it would be difficult to say it should not be given as a lesser offense. Whether the jury would come with that, I don’t know. But voluntary manslaughter is a knowing and intentional killing, but done under provocation. And the proof would seem to indicate that there was probably some animosity going on. A legitimate claim could be made that there was provocation. So it seems to be that the facts would support a charge, a lesser included offense charge of voluntary manslaughter.
GENERAL McKENZIE: That’s correct, Your Honor. If I could just add briefly, that we would be, the State would be relying upon statements made by the defendant before the shooting, which would come through Ms Harris, to prove some knowing intentional, to remove it from the manslaughter. And it’s the insecurity that we have that those statements would be entered into evidence that have put us to the point of wanting to accept this plea.
…”
25. The Tribunal cannot go behind the conviction and examine the facts on which it is based. However, as was said by Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele [1981] 5 ALD 135 (at page 138):
“…
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not tor the purpose of assessing the propriety of the conviction or the fairness of the trial. …”
26. There is little doubt that the circumstances surrounding the commission of the offence by the visa applicant, on 16 April 2001, were unusual. The four adults present at his residence on that occasion had been drinking beer, whiskey and “moonshine” for what appears to be a good part of the day. They were all seriously intoxicated. The victim, Ms Stepp, had a history of suffering from hallucinations, suicidal ideations and major depression for more than a decade and had been in a relationship with the visa applicant which he had been attempting to end. The offence involved a single act of shooting on what was a “one-off” occasion. It appears the visa applicant had been threatened by the victim, and she had threatened to kill herself and the visa applicant prior to the shooting. The victim became agitated when the parties ran out of beer, and when Ms Harris and Shelby Dahlgren danced with the visa applicant and then sat in his lap. It also appears that the visa applicant, the victim and the witnesses were all unsure about what exactly happened with the shooting incident.
27. Sub-paragraph 10.1.1(3) also makes clear that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Although the visa applicant received a sentence of 8 years, with a mitigated offender classification of 20 percent, he served a sentence of only 5 years 4 months, due to his good behaviour. However, this does not detract from the significance of the length of the term of imprisonment to which he was sentenced: Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) FCAFC 114 at paragraph 13. Prior to the incident, the visa applicant had not been convicted of any other offence, including any other serious offence. Nearly 9 years have elapsed since the commission of the offence and no other offences have been committed in the meantime.
28. It is also necessary to take into account any relevant mitigating factors (sub-paragraph 10.1.1(4)). There are no judicial comments, reports or other similar sources of authoritative information or assessment available in the visa applicant’s case. There is, however, the visa applicant’s “STATEMENT OF MITIGATING FACTORS” (Exhibit A1 at pages 44-47), the contents of which were accepted by the Court and not objected to by the State counsel. It was submitted for the applicant that a lighter sentence or no sentence at all might have been incurred in Australia and that, given the difficulties that gave rise to the plea agreement, the prosecuting authorities here may not have proceeded with the charges. This submission is somewhat speculative. However, it is noted that there have been instances involving manslaughter and the character test where, because of the particular circumstances of the case, this Tribunal has exercised the discretion not to refuse the grant of a visa under s 501(1) of the Act in favour of the applicant: see Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336.
29. The circumstances surrounding the commission of the offence by the visa applicant have been discussed above, as have the obvious problems with the State’s case and the unusual plea agreement reached between the parties, which the State counsel described as a “fair resolution” to the matter. There were a number of mitigating factors that occurred at the time the offence was committed, at the time the visa applicant was initially and then later charged, and at the time the plea agreement was entered into. These factors suggest to the Tribunal that the happening of the incident and the delay leading ultimately to the State’s case against the visa applicant were matters out of the ordinary. The Tribunal accepts that the charge against the visa applicant involved the serious offence of voluntary manslaughter and that the Australian community must be protected from such harmful conduct. However, as was said by Deputy President McMahon in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34, there would be a general expectation in the community that the Act will be administered fairly and humanely. The Tribunal is of the view that the Australian community would not be subject to unacceptable risks of harm if the visa applicant was granted a visa. Having regard to all these matters, the Tribunal is inclined to think, on balance, that moderate weight should be given to this first factor in assessing the level of risk of harm to the community.
30. The Risk that the Conduct may be Repeated. The second of the factors relevant to assessing the level of risk of harm to the community of the person’s entry into, or continued stay in, Australia is the risk that the conduct may be repeated (paragraph 10.1.2 of the Direction). The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending, in particular, a recent history of convictions (sub-paragraph 10.1.2(2)(a) of the Direction). The Tribunal notes that, on the evidence available, the visa applicant has no recent history of convictions that would indicate an increased risk of re-offending. He was released from custody less than 3 years ago, having spent over 5 years in prison for his serious conduct. Since his release, there is no evidence of conduct that would indicate an increased risk of re-offending. However, the “no-offending” time spent in prison will be of no real assistance to the visa applicant. Senior Member N Bell was faced with a similar situation in Re Harris and Minister for Immigration and Citizenship [2009] 110 ALD 690, when she said (at paragraph [24]):
“24 Mr Harris submitted that if he can manage to not re-offend in prison where, he says, there is a great deal of provocation, he will be able to avoid re-offending when released. However, prison is a highly structured and regulated environment with fewer choices in relation to one's own behaviour than are available in the outside world. I am not persuaded by this argument.”
31. Also of particular relevance is evidence of the extent of rehabilitation already achieved by the visa applicant and the prospect of further rehabilitation (sub-paragraph 10.1.2(2)(b) of the Direction). In the course of her oral evidence, which the Tribunal has no reason to disbelieve, Ms Dahlgren spoke of the dramatic change in the visa applicant’s lifestyle. He no longer drinks alcohol, nor takes drugs. While in prison, he had been helped by the Church and his lifestyle had turned around. Having previously been a member of a Christian family, he had turned to being a regular church-goer. Included in the documents provided by the applicant to the respondent (Exhibit A1) are also a number of character references from the Preacher and members of the visa applicant’s Church. They all speak of his Christian values, his regular attendances at his local Church at Pleasant Hill and his active contribution to the work of his congregation, which obviously now forms a large part of his life. Also included in the applicant’s documents are copies of certificates relating to the visa applicant’s involvement in educational, bible studies, alcoholics anonymous and narcotics anonymous courses during his time in prison.
32. Included in Exhibit A1 is a corroborative report, dated 1 July 2009, from Mr H Cameron MacManus, the Staff Physician at the Southeastern Tennessee State Correctional Facility, where the visa applicant was incarcerated. The report speaks positively about the visa applicant’s lifestyle change and relevantly reads:
“…
In 2003 he suffered a myocardial infarction (heart attack with damage to the heart muscle) a CVA (stroke) and was also diagnosed with type 2 diabetes. At that time he was prescribed several different medications, many of which have been discontinued at the present time due to his lifestyle change. As of the date of this letter he takes medication for cholesterol, blood pressure, an anti inflammatory for arthritis, as well as medication for fibromyalgia.
While in the prison Mr. Dahlgren was subjected to numerous random drug tests of which all were negative during the five plus years of his incarceration. For this letter of recommendation to you he offered to give another specimen for a drug test of which I didn’t feel was necessary as I have spoken to some of his family members and I am convinced of his lifestyle change since his release. Since being drug and alcohol free, his tachycardia medication has been discontinued and his diabetes is diet controlled.
I am also in touch professionally with Mr. Leroy DeBord who volunteers his time to the prison ministry. Mr. DeBord met Mr Dahlgren during his time in prison where he never missed a worship service and even assisted with the preaching during some services and he also has seen a change in him over the years. Mr. DeBord assured me that he has sent a letter confirming this to the Character Assessment Unit as requested by Mr. Dahlgren. Mr. DeBord is in the process of trying to get Roy into the prison ministry to assist him as an example that lifestyle changes can be a very positive thing. …”
33. Additionally, in Exhibit A1 is a report from Ms Julie Worley dated 30 July 2009, who describes herself as a “Family & Psychiatric Mental Health Nurse Practitioner”. Again, the report speaks positively about the visa applicant’s present character and relevantly reads:
“… He was also put on antidepressants in prison after his wife was unable to enter the country from Australia due to a paperwork technicality he states he became depressed then. At that time he was also put on Lithium. He did not continue on the psychiatric medication after he was released from prison and has not taken any since. Pt did regularly attend AA meetings while in prison. He denies any history of suicidal ideation and has never had a suicide attempt. No dangerousness to self or others is noted. He has never had a psychiatric hospitalization. He denies psychotic symptoms. His mood is euthymic and he has good eye contact. His behaviour is appropriate. No impairment in memory, insight, judgment or impulse control is overtly noted. He denies mood swings or anger problems. He denies depression and states he is happier than he has ever been. …
My understanding is that this pt is appealing a denied visa to visit his wife’s family in Australia due to his legal history. While he did have a serious charge it appears to have been an isolated incident. At present there is no evidence to suggest that he is at any risk for committing any further crimes or being a danger to anyone. His behaviour and mood have reportedly been stable. I do no[t] recommend any psychiatric medication or treatment for this patient. My opinion would be that he does not pose any threat to himself or others. …”
34. The Tribunal accepts that, on the evidence, there has been a significant achievement in the rehabilitation of the visa applicant’s lifestyle and that there is no reason why further rehabilitation cannot be achieved. The Tribunal reviewed the oral evidence given by the visa applicant himself in cross-examination by Mr d’Assumpcao and, although it was not possible to view his demeanour, the Tribunal is satisfied that he was open and honest in all the responses he gave. Having regard to this and to the above factors, the Tribunal is of the view that the risk that the visa applicant’s serious conduct may be repeated is very low. It was submitted for the respondent that insufficient time had elapsed since the visa applicant had been released from prison for the Australian community to bear the risk of any re-offending. Notwithstanding this, the Tribunal is satisfied that there is sufficient evidence of rehabilitation to overcome any insufficiency in time since the visa applicant’s release from prison.
35. The primary considerations referred to in paragraph 10.2 (whether a minor when began living in Australia) and in paragraph 10.3 (length of time ordinarily resident in Australia) are not relevant in the visa applicant’s case and do not assist him.
36. It was submitted for the applicant that the primary consideration in paragraph 10.4.1 (international obligations – the best interests of the child) does assist the visa applicant. It is argued that the interests of applicant’s granddaughter (Jessica Bryant, who is a child) would be adversely affected by a visa refusal, in that the applicant cannot return to Australia with her husband and so Jessica is deprived of the opportunity of regular contact with her maternal grandmother. In the Tribunal’s view, this argument is misconceived. Paragraph 10.4.1 is directed towards a parental relationship that a person has with the child: see references to “parent” or “parental” in sub-paragraphs 10.4.1(4), (5)(a), (5)(c), (5)(g) and (5)(j). This approach to paragraph 10.4.1 is supported by the decision of the Full Federal Court (Tamberlin, Nicholson and Tracey JJ) when dealing with the same “parental” issue arising under Direction No 21.
37. Other Considerations. The Tribunal now refers to such of the other considerations included in paragraph 11(3) of the Direction as are relevant to the present matter. In doing so, the Tribunal takes into account what is said in paragraph 11(2), which reads:
“(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.” [emphasis added]
Paragraph 11(3) of the Direction contains a list of some seven examples of other considerations. These are not exhaustive because the opening words of paragraph 11(3) read: “These other considerations include: …” (emphasis added).
38. The Tribunal notes the use of the word “generally” in paragraph 11(2) of the Direction. In Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 Deputy President Jarvis analysed the wording used in the preface to paragraph 2.17 of Direction No 21, which paragraph is similar to paragraph 11(3) of the Direction. The preface to paragraph 2.17 relevantly reads:
“2.17 When 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. …” [emphasis added]
In paragraph 54 of his decision Deputy President Jarvis concluded that:
“… whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the ‘other considerations’ may outweigh a primary consideration if the facts of a particular matter warrant this result.”
39. The Tribunal now examines the relevance of the following “other considerations” to the present matter.
40. Family ties, the nature and extent of any relationships. In relation to this other consideration in sub-paragraph 11(3)(a) of the Direction, the applicant has referred to the decision of Deputy President Jarvis in Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082 and the meaning of the word “family” in paragraph 2.17(a) of Direction No 21, which there relates to “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community”. In Re Bustin, Deputy President Jarvis noted that the word “family” is not defined in Direction No 21. However, he considered that the review applicant, Mrs Bustin, would be regarded as part of the “family” of the visa applicant, Mr Bustin, as would her parents and other close relatives. He referred to Dyson Holdings Ltd v Fox [1976] 1 QB 503, where in a case concerning the rights of a mistress, James LJ stated at page 511:
“Many changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word ‘family’ is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony.”
41. Although the decision in Re Bustin was concerned with Direction No 21, the Tribunal notes that the word “family” is also not defined in the Direction. Adopting the approach taken by Deputy President Jarvis in Re Bustin, the Tribunal is of the view that the word “family” in paragraphs 11(3)(a) and (e) of the Direction would include the applicant (Ms Dahlgren) and her daughter (Ms Bryant). Arguably, it might also include the applicant’s granddaughter, Jessica. Ms Dahlgren has a close relationship with her Australian family and the effect of the visa refusal would be to permanently separate an Australian woman (and her husband) from her daughter and her grandchildren. Her absence (and the absence of her husband) has caused hardship and psychological problems for the applicant’s daughter. Ms Bryant met the visa applicant in 2007 and 2008, having spoken to him by telephone in 2003 and in 2005. Ms Bryant’s daughter, Jessica, wishes to see her grandmother and to meet the visa applicant, who she saw as her grandfather. The Tribunal finds that the decision to refuse the visa would be disruptive to both Ms Dahlgren’s immediate family and the family in Australia of the visa applicant (see sub-paragraph 11(3)(a)(i) of the Direction.
42. Hardships likely to be experienced by the person or their immediate family members lawfully resident in Australia. The “family” consideration above is also relevant to the marital relationship between Ms Dahlgren and the visa applicant, referred to in sub-paragraph 11(3)(a)(ii) of the Direction, and to the hardship issue to immediate family members resident in Australia, referred to in sub-paragraph 11(3)(e) of the Direction. Ms Dahlgren first met the visa applicant in May 2000 and she returned to Australia in August 2000. After the shooting incident, the visa applicant contacted her and she returned to the United States. She married the visa applicant in October 2001, before he went to prison in June 2002. It seems clear to the Tribunal that, at the time of entering into the relationship with the visa applicant, Ms Dahlgren would have known or been aware that he was of character concern. As to the hardship issue in sub-paragraph 11(3)(e) of the Direction, for much the same reasons outlined in paragraph 40 above, the Tribunal finds that the decision to refuse the visa would cause hardship to the visa applicant’s immediate family members lawfully resident in Australia.
43. According to paragraph 9(2) of the Direction, only those “other considerations” (as defined in paragraph 11 of the Direction) that are relevant should be taken into account. The Tribunal has examined the other considerations in sub-paragraphs 11(3)(b), (c), (d), (f) and (g) of the Direction and find that they are not relevant or do not give rise to a favourable consideration.
44. On the analysis in paragraphs 36 to 41 above, the Tribunal is of the opinion that this is a matter where the relevant “other considerations” are favourable to the visa applicant, and would lead to a grant of the visa.
conclusion
45. The Tribunal is required by paragraph 9(1) of the Direction to take into account the primary considerations (in paragraph 10) in every case and the other considerations (in paragraph 11), where relevant. Unlike paragraph 2.2 of Direction No 21, which spoke of the need for decision-makers to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa, the same balancing process is not referred to in the Direction. However, in the Tribunal’s view, such a process must be inferred to enable a decision on the possible exercise of the discretion in s 501(1) of the Act to be reached. The Tribunal has found that moderate weight to refuse a visa should be given to the first factor relevant to assessing the level of risk of harm to the community, namely, the seriousness and nature of the relevant conduct of the visa applicant. The Tribunal has also found that the second of the factors relevant to assessing the level of risk of harm to the community, namely, that the visa applicant’s serious conduct may be repeated, is extremely low. The Tribunal further considers that various of the “other considerations” – including the disruption to both Ms Dahlgren’s immediate family and the family in Australia of the visa applicant and the hardship to the visa applicant’s immediate family members lawfully resident in Australia, if the visa is refused – are important in the present matter and support the grant of a visa. Adopting a balancing process and considering all the evidence before it, the Tribunal has decided that it is appropriate in the present matter to exercise the discretion in s 501(1) of the Act in the visa applicant’s favour.
46. It was also submitted for the respondent that, should the Tribunal exercise its discretion so as not to refuse the visa applicant’s visa, the visa applicant will be in a position to successfully apply for a permanent visa. This may be the case. But as was also acknowledged for the respondent, any such application will have to be considered on the facts at that time.
decision
47. The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion not to refuse the grant of a Tourist (Class TR) visa should be exercised in favour of Roy Clyde Dahlgren.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard.........................................
AssociateDate of Hearing 9 February 2010
Date of Decision 12 May 2010
Advocate for the Applicant Ms J Bryant
Advocate for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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