DAVID BAYLEY and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 965

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 965

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0510

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID BAYLEY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Regina Perton, Member

Date17 December 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review, remits the matter to the respondent and directs the respondent not to exercise the discretion to refuse to grant Mr Kamusen Thomas’s visa pursuant to s 501(1) of the Migration Act 1958.

(sgd) Regina Perton

Member

MIGRATION – interdependency visa – refusal – conviction for serious offences – character test – exercise of discretion – decision set aside

Migration Act 1958 ss 499(1), 499(2A), 501(1), 501(6), 501(7)

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

17 December 2009 Regina Perton, Member     

1.      On 15 November 2007 Kamusen Thomas, a citizen of Papua New Guinea (PNG), applied for an Interdependency (Provisional)(Class UF) visa.  He was sponsored by his partner, David Bayley, an Australian citizen.  On 20 January 2009, a delegate of the Minister for Immigration and Citizenship (the Minister) refused the visa because she was not satisfied that Mr Thomas met the character test set out in the Migration Act 1958 (the Act) due to his criminal record. 

2.      There is discretion available to decision-makers to decide whether to grant a visa when a person fails to meet the character test.  Mr Bayley, as Mr Thomas’s sponsor, is entitled to seek review of the decision to refuse the visa.  Mr Bayley applied to the Tribunal on 5 February 2009.

LEGISLATIVE BACKGROUND

3. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the Minister is not satisfied the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test on one of several grounds set out in s 501(6)(a)‑(d). They include:

(a)the person has a substantial criminal record (as defined by subsection (7));…

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

4. Section 499(1) of the Act provides that the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).

5. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction No. 41 – Visa Refusal and Cancellation Under Section 501 (Direction 41) that came into operation on 15 June 2009.  Direction 41 provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act.  The guidance includes the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.  Direction 41 replaced an earlier Ministerial direction (issued on 23 August 2001), which was still in force at the time the Minister’s delegate refused to grant the visa.  The Tribunal must pay heed to the current Direction 41.

6.      Paragraph 9 of Direction 41 requires decision-makers to take into account the primary considerations in every case.  The four primary considerations are set out in paragraph 10 of Direction 41:

(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, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

7.      Paragraph 11 of Direction 41 provides that other considerations (which are not primary considerations) must be taken into account.  They include family ties, the nature and extent of any relationships; the person’s age; the person’s health; any links to the country to which they would be removed; hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; level of education; and whether the person has been advised previously of deportation or character provisions of the Act.

ISSUES

8.      The issues before the Tribunal are:

·Does Mr Thomas pass the character test? If not:

·Should the discretion to refuse to grant the visa be exercised? This involves an assessment of the primary considerations and other considerations.

TIME SPENT IN AUSTRALIA

9.      Mr Thomas was born in PNG in 1969.  Mr Thomas first visited Australia for a two week holiday on a tourist visa in October 1994.  He visited Australia again from 3 March 1995 to 20 March 1995; 16 December 1995 to 24 February 1996; 15 March 1996 to 1 June 1996 and 3 June 1996 to 15 June 1996.  Mr Thomas entered Australia as a student on 4 July 1999 and left again on 7 August 1999.  On 18 December 2000 Mr Thomas arrived on a student visa and departed two years later on 18 December 2002.  He returned to Australia on 10 February 2003 as a student.  His student visa was cancelled on 7 June 2005 and he was granted a bridging visa.  On 21 June 2005 Mr Thomas was granted a criminal justice visa.  Mr Thomas was granted a bridging visa on 20 December 2005.  He departed from Australia on 31 December 2005.  Since then he has remained in PNG.

DOES MR THOMAS PASS THE CHARACTER TEST?

10.     On 18 April 2005, in the Sunshine Magistrates Court, Mr Thomas pleaded guilty to two counts of criminal damage, two counts of intentionally damage property, two counts of breach of intervention order and unlawful assault.  The offences were committed between 21 October 2001 and 6 July 2002 against Mr Thomas’s former partner.  The Magistrate placed Mr Thomas  on a community-based order with conditions that he perform unpaid community work, undergo assessment, treatment and counselling as directed and pay compensation of $962. 

11.     On 7 December 2005 Mr Thomas was convicted in the Victorian County Court of intentionally cause serious injury and two counts of common law assault.  The offences were committed on 21 February 2004 against another former partner.  Mr Thomas pleaded guilty to the charges.  The judge convicted Mr Thomas and sentenced him to 18 months imprisonment, wholly suspended for 18 months, with a 12-month community-based order. 

12. Section 501(7) deems a person to have a substantial criminal record if he has been sentenced to a term of imprisonment of 12 months or more. A term of imprisonment includes a wholly suspended sentence. Mr Thomas conceded, and the Tribunal finds, that he does not pass the character test.

THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT

13.     Paragraph 10.1(2) of Direction 41 provides that factors relevant to assessing the level of risk to the community include:

(a)       the seriousness and nature of the relevant conduct; and

(b)       the risk that the conduct may be repeated.

Seriousness and nature of the conduct

14.     Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.  Examples of offences and conduct that the Government views as serious are set out in paragraph 10.1.1(2) of Direction 41.  They include some of the offences for which Mr Thomas was convicted.

15.     Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers  exercising the discretion to take into account a number of factors. These include the sentence imposed for the offences (including the number and nature of the offences); the period between offences; the time that has elapsed since the most recent offence; relevant information about the person such as judicial comments or professional psychological reports; and any relevant factors the person provides as mitigating factors.

16.     On 18 April 2005, following a guilty plea in the Sunshine Magistrates Court, Mr Thomas was convicted of criminal damage, intentionally damage property, breach of intervention order and unlawful assault.  The victim was a former partner, with whom he had a volatile relationship.  The Tribunal does not have a record of the magistrate’s comments when he sentenced Mr Thomas to a 12 month community‑based order and required him to undertake 50 hours of community work, attend counselling and pay $962 for the damage Mr Thomas had caused to his former partner’s property. 

17.     An article in the Herald Sun newspaper on 20 April 2005 indicated that Mr Thomas threw a washing machine tub through the back window of his partner’s car; smashed his partner’s television set with a dumbbell and cut the leads of all the electrical appliances in the house.  On another occasion, he punched the front windscreen of his partner’s car and grabbed his partner by the throat trying to drag him into the back of the car.  The article pointed out that Mr Thomas had been subject to racist taunts. The offences were committed between October 2001 and July 2002.   

18.     In his evidence, Mr Thomas described various ways in which his then partner had intimidated him.  Mr Thomas said that he found it hard to study in his partner’s house and did not like his partner’s friends.  When he told his partner that he wanted to move out, his partner threw a dumbbell at him.  When his partner went out, Mr Thomas damaged the television set and cut the electrical cords.  Mr Thomas said that his former partner’s family, in retaliation, had taken items that were valuable to him, including his computer which contained essential study materials, and would not return them.  Mr Thomas said that his partner subsequently took out an intervention order against Mr Thomas, which Mr Thomas breached by making telephone calls seeking his goods back. 

19.     Mr Thomas fulfilled his community service requirements.  He attended educational programs and underwent assessment and counselling treatment for anger management. 

20.     The offences that resulted in Mr Thomas’s County Court appearance occurred on 21 February 2004.  The transcript indicates that Mr Thomas pleaded guilty to two counts of common law assault and one count of intentionally causing serious injury.  In respect of the common law assault, the judge ordered Mr Thomas to undergo a community-based order of 12 months duration, with conditions that he perform 100 hours of unpaid community work and attend relevant programs as directed by a community corrections officer.  On the charge of intentionally causing serious injury, the judge sentenced Mr Thomas to 18 months imprisonment, wholly suspended for 18 months. 

21.     Mr Thomas told the Tribunal that he had not committed any offences in Australia after the February 2004 offences; and that he had not committed any offences in PNG before or after his time in Australia.  A certificate from the Australian Federal Police dated 4 December 2007 indicated no other offences known apart from those cited above and no pending criminal charges.  A police clearance certificate from the Royal Papua New Guinea Constabulary dated 11 September 2008 indicated that a search of their records reveals nothing to the detriment of Mr Thomas.

22.     The sentencing judge’s comments in the County Court included:

...

9.        The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment; for common law assault, five years’ imprisonment so it is that these are to be regarded as serious offences.

…

14.      In sentencing you, I must also take into account your pleas of guilty and give you a discount for them and the fact that by reason of your pleas you have saved the community the cost of the trial and your victim the ordeal of one.  I take into account that by reason of your earlier conviction and these matters, you have lost the opportunity to complete your education in Australia and that, eventually, you will be deported home.  I take into account also that your family became aware of these matters through newspaper reports and that this has brought great shame upon them and you.  I accept also that you are remorseful for your actions and that you are otherwise a hardworking person who has given almost nine years loyal service to your country and that, by reason of these offences, any educational or professional advantages that you may have gained by studying in Australia are now effectively lost to you and, consequently, your offending conduct has significantly adversely affected you.

15.      Counsel for the Crown has submitted that an immediate sentence of imprisonment is here appropriate…

16.      I agree that your conduct does warrant the imposition of a sentence of imprisonment but I am satisfied that in the circumstances of this case it is appropriate to suspend such sentence.  Various testimonials and your curriculum vitae tendered in evidence on your behalf suggest that you are a capable, intelligent man.  Further, you are successfully applying yourself to the terms of your current community-based order.  Accordingly, the Court can be confidential [sic] that your rehabilitation is achievable.

17.      Accordingly, in sentencing you, I take into account your pleas of guilty, your remorse, your lack of prior convictions, the very real hardship you would face imprisoned in a foreign country far away from the comfort of your family and loved ones and that your rehabilitation may be said to be under way.  For these reasons I am satisfied that any sentence of imprisonment imposed may be wholly suspended.

…

23.     Anne-Marie Fenby, Community Corrections Officer, prepared a pre-sentence report for the County Court on 2 December 2005.  Ms Fenby stated that:

… Mr Thomas is currently subject to a Community Based Order… and presents to be extremely compliant, making significant progress.  As the current Community Based Order was imposed after the commission date of the mentioned offence, he has not been assessed as a high risk of offending…

24.     Casey Powell, Community Corrections Officer at Newport, in a letter dated 29 August 2005, stated that Mr Thomas had been attending all appointments since commencing the community-based order of the Magistrates Court.  Mr Powell stated that Mr Thomas had completed counselling sessions in relation to substance abuse and relapse prevention and had been a receptive participant.  Mr Thomas was currently attending counselling sessions in relation to anger and stress management.  Mr Thomas had also undertaken community work and completed additional short courses of his own volition. 

25.     Dr Lester Walton, consultant psychiatrist, prepared a report on 15 November 2005 which was presented to the County Court.  Dr Walton stated that although Mr Thomas had been involved in two episodes of aggression that had brought him before the courts, his completion of an anger management program since the offences was relevant. 

26.     Mr Thomas gave evidence about the nature of the relationships which ended in violence.  He did not excuse his own behaviour but described the various elements that led to the violent actions on his part.  The two successive partners had been violent towards him  physically and through racist taunts.  He had been concerned about criminal elements who were friends with his first partner.  With the second partner, it was a short-term relationship, with Mr Thomas’s actions on the day being fuelled by alcohol consumption.

27.     Mr Thomas had several character referees before the County Court.  They included David Tanner, who had been a senior public servant at the Australian High Commission in PNG.  In a reference dated 1 December 2005, Mr Tanner stated that he had been in a relationship with Mr Thomas in PNG more than a decade earlier.  They remained friends now.  He described Mr Thomas in that letter, and in evidence before the Tribunal, as a very genuine, honest and gentle person. 

28.     Other referees providing written and/or oral support for the court case included David Bayley, Mr Thomas’s partner of then almost two years’ standing; Peter Bayley, David Bayley’s brother; Olga Schuh, a friend of Mr Thomas and Mr Bayley; and Mark Favetta, who had known Mr Thomas for some five years.   They all regarded Mr Thomas highly and were aware of his offences when providing the references.

29.     Mr Thomas left Australia three weeks after the sentencing while still holding a bridging visa.  He has remained in PNG since.

30.     Mr Thomas has committed serious offences that are abhorrent to the Australian community.  Notwithstanding their seriousness, the Tribunal notes that the sentence given to Mr Thomas was very much at the lower end of the scale for an offence that carried a maximum of 20 years’ imprisonment.

Risk that the conduct may be repeated

31.     Paragraph 10.1(2) of Direction 41 requires the Tribunal when assessing the risk of harm to the community to consider the risk that the conduct may be repeated.  That consideration is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.

32.     There is no evidence that Mr Thomas committed any offence either before or after those for which he was convicted during 2005.  The offences were committed in a period between October 2001 and February 2004.  It has now been almost six years since his last offence.   

33.     In June 2005, Mr Thomas was issued with a criminal justice stay visa which allowed him to remain in the community and stay with his partner, Mr Bayley.  The Office of Public Prosecutions determined that Mr Thomas does not represent a danger to individuals and to people in general…

34.     Dr Walton prepared a report dated 19 May 2009 and gave oral evidence at the hearing.  Dr Walton, who provided evidence of extensive experience in undertaking assessments of offenders, stated that:

…. Proper weight, in my view, is placed upon the assessment of Mr Thomas’ risk of recidivism [by the Department].  It should be noted, as far as I am aware, that there is no adverse documentation regarding Mr. Thomas being at an especially elevated risk of reoffending.

From my perspective, there are relevant general actuarial considerations as well as particularising Mr. Thomas’ personal situation. Given the fact that Mr Thomas has now been involved in two incidents of criminal aggression, that automatically places him permanently in the category of at least somewhat elevated risk, simply on the basis of the past history. However, the fact that there have been so few incidents over a period of 40 years is reassuring.

In terms of factors which apply to Mr. Thomas is an individual, it is well recognised that most aggression displayed by males is the prerogative of younger men, and Mr. Thomas is now a man of almost 40 years of age. Furthermore, his incidents of aggression occurred in situations of emotional turmoil and relationship strife, which are no longer features.  Alcohol misuse is commonly associated with unacceptable aggression.  In the case of Mr. Thomas, this was not a major feature but, to the extent that it may have even had minor relevance previously, that is now substantially reduced because his alcohol intake has diminished…  Mr. Thomas is confident that he can rely upon the techniques he has been taught to defuse potentially escalating situations of anger and that his rehabilitation has been successful in that regard.

There is simply nothing else that I can identify which Mr.  Thomas should apply himself to in terms of enhancing his prognosis.  It is most reassuring that five years have now lapsed since the last worrisome event.

It is well recognized that attempting to make any precise predictions of an individual's further risk of behaving aggressively is unreliable to a point of being hazardous….Bearing in mind that the procedure is fraught with potential error, what indications there are surrounding Mr.  Thomas’ risk of reoffending do appear to be substantially favourable.

35.     Dr Walton was questioned extensively about his comments during the hearing.  Dr Walton stated that he was reluctant to be drawn into specific predictions, as it was impossible to be accurate.  He stated that an actuarial approach to such predictions was the least reliable method.  Dr Walton stated that Mr Thomas is at an elevated risk of offending due to his previous offences.  However, the actuarial approach alone does not allow for environmental factors. 

36.     Dr Walton stated that Mr Thomas appeared to have matured psychologically.  The amount of time that had passed without him, re-offending was also relevant.  Mr Thomas’s remorse, which appeared genuine, was a factor reflecting his greater psychological maturity.  Dr Walton also noted that Mr Thomas had applied himself to counselling.  He pointed out that Mr Thomas is now in a long-term relationship.  Dr Walton was of the opinion that Mr Thomas did not pose a risk to the general community.  If anyone was at risk, it would only be Mr Bayley.  He ended his comments by stating he did not regard Mr Thomas as being a person at a high risk of re-offending. 

37.     Judge David Cannings, a Judge of the National Court and Supreme Court of PNG, provided a statement dated 14 July 2009.  Judge Cannings, an Australian citizen who has been a resident of PNG since 1989, stated that he had first met Mr Thomas in 1991 and that he remained a friend.  He described Mr Thomas as a very pleasant, affable, sociable and likeable person, who is similarly regarded by all who know him.  Judge Cannings stated that Mr Thomas has not been in any trouble  in PNG.  In oral evidence, Judge Cannings said that he is aware of the offences Mr Thomas committed.  He was surprised at what had happened and believed that they were out of character.   He stated he had met David Bayley, whom he described as an impressive, calm and sensible person.  Judge Cannings believed Mr Bayley and Mr Thomas had a successful, loving, committed and stable relationship.  It was his view that it was unlikely Mr Thomas would re-offend.

38.     Mr Thomas committed the offences against two different victims in the context of the breakdown of acrimonious relationships.  Mr Thomas’s relationship with Mr Bayley blossomed only a few months after the violent incident in February 2004.  They first met briefly in 2001.  They have remained in a committed relationship for more than five years.  Several witnesses, including Mr Tanner who has known Mr Thomas for fifteen years, have stated that the nature of the relationship between Mr Thomas and Mr Bayley is significantly different to that which he experienced with the two victims of his offences.  They were strongly of the view that were the relationship with Mr Bayley to break up (which they did not anticipate happening) the ending would not be violent.  They believed this was due to Mr Bayley’s personality, as well as Mr Thomas having learned how to manage his emotions in a sensible and considered fashion.

39.     Ms Miller, on behalf of the respondent, submitted that Mr Thomas’s offending took place in circumstances involving failing relationships.  She pointed out that these circumstances have not arisen since Mr Thomas’s last offence.  She submitted that if there was another failed relationship, Mr Thomas might  re-offend. 

40.     While Mr Thomas’s offences were serious, they were committed in the context of acrimonious relationships where the victims appear to have contributed to the situation.  That does not excuse Mr Thomas’s behaviour nor condone his offences.   In considering the first primary consideration - whether the Australian community will be protected from serious criminal or other harmful conduct, particularly crimes involving violence, if Mr Thomas is not granted the visa - the Tribunal needs to decide if Mr Thomas is likely to re-offend if allowed to re-enter Australia by balancing the positive and negative indicators.   

41.     Mr Thomas has shown remorse and has sought to modify his reactions to stressful situations.  He has undertaken courses and counselling since the offences to assist him in anger management.  He has not re-offended since 2004. 

42.     Mr Thomas would have significant personal support in Australia including a committed partner of more than five years standing, his partner’s family and mutual friends.  He also has significant support from Mr Tanner, Mr Rodney Miller (another of the witnesses who met him in PNG and on returning to Australia maintained contact) and several other witnesses who provided references and/or gave oral evidence to the Tribunal.

43.     Dr Walton, who had assessed Mr Thomas before his sentencing in December 2005 and later by telephone, gave the opinion that Mr Thomas was unlikely to re-offend due to his changed personal circumstances, as well as more general factors including his age.

44.     The sentencing judge commented that she thought that Mr Thomas was on track for rehabilitation and took that into account in giving him a relatively light sentence for such serious offences.  The Office of Public Prosecutions, in recommending Mr Thomas be granted a criminal justice stay visa to enable him to remain in the community while awaiting trial, also commented that it did not believe Mr Thomas posed a danger to the community in 2005.  Nothing has happened since his departure from Australia to suggest that the situation is now any different.  Judge Cannings, who has practised in criminal jurisdictions and knows Mr Thomas, was of the firm view that there is a low risk of Mr Thomas re-offending.

45.     The Tribunal also takes into account Ms Miller’s submission that Mr Thomas has not been involved in the breakdown of a relationship since 2004, the implication being that he has not been tested.  However, the Tribunal is  satisfied that the nature of Mr Thomas’s relationship with Mr Bayley, now of over five years’ standing and  maintained via almost daily telephone calls and several visits to PNG by Mr Bayley, makes it unlikely that any break up of the relationship would be as acrimonious as the previous ones. 

46.     On balance, with the support of his partner, family and many friends, and with apparently successful counselling in anger management, the Tribunal finds that the risk that Mr Thomas will re-offend is low.  This primary consideration weighs against refusal of the visa. 

SECOND PRIMARY CONSIDERATION: WHETHER MR THOMAS WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

47.     Mr Thomas was not a minor when he began living in Australia.  Therefore, this consideration is not relevant.

THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR THOMAS WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY

48.     Paragraph 10.3 of Direction 41 provides that consideration must be given to the length of time that a person has been ordinarily resident in Australia.  More favourable consideration must be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.

49.     Mr Thomas started residing in Australia as a long-term AusAid scholarship student in December 2000.   He had previously been in Australia as a tourist on several occasions and to undertake a short term course.  He committed the first offence in October 2001.  Mr Thomas was resident in Australia for only twenty months before committing offences. The Tribunal finds that this primary consideration weighs in favour of refusing the visa.

FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS

50.     Early submissions suggested that PNG’s penal code, which includes up to 14 years’ imprisonment for consensual homosexual conduct, may well be relevant as it is in breach of the International Covenant on Civil and Political Rights (ICCPR).  In a report dated January 2009, Human Rights Watch noted that PNG acceded to the ICCPR in July 2008. Human Rights Watch suggested that police sometimes target homosexuals by threatening to arrest them under PNG law.  Judge Cannings gave evidence that notwithstanding the statute, homosexuals were generally safe from criminal prosecution.  Mr Thomas and other witnesses pointed to the social stigma in certain circles.  However, Mr Thomas has not been targeted, although he pointed out that he has been discreet about his relationships.  This consideration is primarily targeted at the CROC and the non-refoulement obligations under the Refugees Convention.  Neither of these are relevant in this matter given Mr Thomas is in PNG.  The Tribunal gives minimal weight to this primary consideration in deciding whether to exercise its discretion.  

OTHER (NOT PRIMARY) CONSIDERATIONS

Family ties, the nature and extent of any relationships

51.     Mr Thomas has no immediate family living in Australia.  He has siblings in PNG.  Mr Thomas has many friends in Australia, several of whom gave evidence on his behalf.

52.     Mr Thomas’s partner of over five years standing is an Australian citizen.  He and Mr Bayley commenced living together in mid 2004.  Mr Bayley is sponsoring Mr Thomas.  The Tribunal received statements and/or heard evidence from Mr Bayley, Mr Thomas, several of their friends and Mr Bayley’s two siblings, all of whom described the closeness of their relationship.  The Tribunal is satisfied that they have an ongoing close relationship of mutual support. 

53.     The evidence indicates that being separated from Mr Thomas has taken quite a toll on Mr Bayley, physically, emotionally and financially.  Mr Bayley took a voluntary redundancy from his job of 20 years so that he would have sufficient funds to obtain legal representation for Mr Thomas.  Fortunately, Mr Bayley has been able to gain employment  with another company. 

54.     Mr Bayley has visited Mr Thomas several times in PNG since Mr Thomas left Australia on 31 December 2005.  Mr Bayley had not travelled overseas prior to going to PNG.  Mr Bayley described the great impact on him caused by Mr Thomas’s departure and the ongoing sadness and strain of the refusal to grant the visa on character grounds.  He has made enquiries as to whether he can obtain work in PNG if his partner is not granted a visa and would be prepared to move if his partner is not able to come to Australia.  Mr Bayley is close to his mother and siblings and would obviously prefer to stay in Australia.  Mr Bayley’s family has embraced Mr Thomas as one of them. 

55.     Mr Bayley knew about some of Mr Thomas’s offences when they first started their relationship.  Mr Bayley gave evidence that he became aware of the full extent of Mr Thomas’s offences around the time of the Magistrates’ Court hearing in early 2005.  Their relationship has continued for more than four years since then.  Mr Bayley supported Mr Thomas throughout his County Court proceedings.  Mr Bayley’s family and the couple’s friends were all aware of Mr Thomas’s criminal record when he returned to PNG.  They have remained supportive of him nearly four years later. 

56.     The refusal to grant a visa to Mr Thomas would cause Mr Bayley significant hardship.  The Tribunal is of the view that this consideration weighs in favour of exercising the discretion not to refuse the visa. 

Age

57.     Mr Thomas is now 40 years of age.  He is not of an age where this consideration is a relevant factor.

Health

58.     Mr Thomas is of good health.  On his return to PNG he contracted malaria but has now recovered.  This consideration is not relevant to the Tribunal’s decision. 

Links to the country to which he would be removed

59.     Mr Thomas returned to PNG as required to by his bridging visa conditions.  He has siblings in PNG, although they have their own families and concerns.  The Tribunal accepts that his greater emotional connection is to his Australian citizen partner. 

Hardship likely to be experienced by Mr Thomas or his immediate family members lawfully resident in Australia

60.     Mr Thomas does not have any close family relatives of his own in Australia.  However, he has his partner and his partner’s family.  Funding his trips to PNG and obtaining leave from work has caused difficulties for Mr Bayley.  Mr Bayley is unable to obtain the support from other people that he obtains from his partner.  Similarly, Mr Thomas remains separated from his partner except when Mr Bayley visits PNG or in their regular telephone conversations. 

Level of education

61.     Mr Thomas passed the tenth year of high school before joining the PNG army.  During his eight years with the army, he undertook courses which allowed him to work as a radio operator and shift supervisor.  He undertook business studies in PNG and then completed a Certificate IV in Small Business Management in Adelaide in 1999. 

62.     Mr Thomas enrolled at Victoria University in 2001 on an AusAid scholarship obtaining a diploma and then transferred into the Bachelor of Business Management.  He did not complete the degree due to the cancellation of his scholarship in early 2005.  Mr Thomas has been employed in PNG and in Australia.  He was a radio operator in the PNG army and served in Bougainville.  He was self-employed in his own nursery and landscape gardening business in PNG.  He has worked as a picker, removalist and a process worker in Australia.  On his return to PNG, he worked as a postal worker for a time.

63.     Mr Thomas has sought to improve himself through education and may well decide to finish his degree if allowed to return to Australia.  He is versatile in his employment and demonstrated strong English language skills in his evidence to the Tribunal.  This consideration weighs against refusal of the visa on character grounds. 

Whether Mr Thomas has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act

64.     Mr Thomas was not formally advised by the Department of Immigration and Citizenship, prior to the commission of his offences, about conduct that has resulted in the application of the character or deportation provisions of the Act.  Mr Thomas was aware that he would have to leave Australia after the County Court case and left before his bridging visa expired.  He has always complied with the timelines of the visas granted to him.  Mr Thomas was aware that the conditions of his AusAid scholarship were that he had to return to PNG for two years before being eligible to reapply to reside in Australia.  This consideration weighs against refusing to grant Mr Thomas a visa.    

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

65.     The primary consideration of the protection of the Australian community weighs against the refusal to grant the visa in view of the Tribunal‘s conclusion that there is a low risk of re-offending if Mr Thomas is allowed to return to Australia.  He has strong support from his partner, partner’s family and friends.  He has also undergone relevant counselling and has consciously changed his methods of dealing with stressful situations.  The second primary consideration is not relevant as Mr Thomas was an adult when he first started living in Australia.  The third primary consideration weighs in favour of refusing to grant the visa because Mr Thomas was resident in Australia for a relatively brief period committing criminal offences.  The fourth primary consideration is only minimally applicable because of the laws in PNG concerning homosexuality. 

66.     The Tribunal is of the view that on balance, the primary considerations weigh against refusing to grant the visa because of Mr Thomas’s failure to meet the character requirements. 

67.     Of the other (not primary) considerations, the impact on Mr Bayley is a significant factor weighing against refusal of the visa on character grounds.  Others are of minimal or no relevance, although the Tribunal notes that Mr Thomas’s level of education and employment history make it likely that he will contribute to the Australian economy if allowed to migrate.

68.     After considering all the circumstances of the primary considerations and then the other considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, that the factors that are in favour of allowing Mr Thomas to be granted an interdependency visa outweigh the factors in favour of refusing the visa.  The respondent should exercise its discretion to grant the visa, despite Mr Thomas failing to meet the character test. 

DECISION

69. The Tribunal sets aside the decision under review, remits the matter to the respondent and directs the respondent not to exercise the discretion to refuse to grant Mr Kamusen Thomas’s visa pursuant to s 501(1) of the Migration Act 1958.

I certify that the sixty-nine [69] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd) Olympia Sarrinikolaou

Clerk

Dates of hearing:  16 October 2009 and 23 October 2009
Date of decision:  17 December 2009
Counsel for the applicant:            Mr G Hughan
Solicitor for the applicant:           Clothier Anderson & Associates

Solicitor for the respondent:        Ms K Miller

Australian Government Solicitor