Dunbar and Minister for Immigration and Multicultural Affairs - [2001] AATA 49

DECISION AND REASONS FOR DECISION [2001] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1728

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Kevin Marion Dunbar
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal The Hon RNJ Purvis, QC, Deputy President

Date31 January 2001
PlaceSydney

Decision       The Tribunal determines and directs that: (a) the decision under review is set aside; (b) the discretion under section 501 of the Act be exercised in favour of the visa applicant; and (c) the subject visa application be remitted to the Respondent for further re-consideration.
  [Sgd] RNJ Purvis
  Deputy President
CATCHWORDS
Immigration – refusal of Partner (Residents) class of visa – health problems of partner – significant hearing problems of partner – diabetes class 1 of partner – criminal conduct of visa Applicant – crimes against children – not of good character – whether discretion can be exercised – minimal risk of recidivism – protection of Australian community – discouraging similar conduct – seriousness and nature of conduct – expectation of Australian community

Migration Act 1958

REASONS FOR DECISION

The Hon. RNJ Purvis, QC

the application

This is an application by Kevin Marion Dunbar ("the Applicant") for review of a decision made by a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") on the 27 October 2000, refusing his application for the grant of a Partner (Residents) class of visa. In the decision under review the Respondent inter alia stated:
"Evidence of grounds
Mr Dunbar is seeking the grant of a Partner (Residents) class of visa and has made specific claims under the provision of Spouse subclasses 820 and 801. As an applicant for a visa in these visa subclasses Mr Dunbar must satisfy the prescribed public interest criteria specified in Schedule 4 of the Migration Regulations which requires Mr Dunbar to pass the character test under subsection 501 (6) of the Migration Act
...
Mr Dunbar does not pass the Character Test because of the provisions of subsection 501(6)(a) as he has a substantial criminal record as defined by subsection (7). Subsection 501(7)(c) deems a person to have a substantial criminal record if the person has been sentenced to a term of imprisonment of twelve months or more.
Part D: Discretion
The Minister's direction under section 499 sets out the matters that are to be taken into account in exercising this discretion. There are three primary considerations namely the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child.
…
Protection of the Australian Community
(a) seriousness and nature of the conduct
Paragraph 2.6 of the Minister's direction Section 499 provides some examples of offences considered by the Government to be very serious. These include the crimes for which Mr Dunbar has been convicted, namely sexual assaults. Sexual assaults are particularly repugnant to the Australian community especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence. It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct.
…
The crimes of indecent exposure and sexual assault are particular repugnant to the whole Australian community. Mr Dunbar was an adult between 22 and 39 years of age when the offences were committed. There is no evidence of any mitigating circumstances in this case. That Mr Dunbar was sentenced to 3 years and 6 months in prison is evidence of the seriousness of his conduct….
Whilst I accept that Mr Dunbar is genuinely remorseful of his previous behaviour and that he found the counselling helpful and rewarding and that he will promptly seek professional help should his "past feelings" re-occur, I do not accept that the risk of recidivism is low…
…
(c) general deterrence
Although I accept that Mr Dunbar is sincerely remorseful of his past criminal activities refusing to grant him a visa may deter other applicants with criminal records of entering the country with the intention of seeking permanent residence.
The Expectation of the Australian Community
Mr Dunbar can not expect any member of the community to tolerate the nature of his crimes. If non-citizens intend to reside permanently in Australia, the Australian community expects them to obey Australian laws designed for the protection of the community. Whilst there is no evidence that Mr Dunbar has breached any Australian laws during his stay in Australia, he has been convicted of serious crimes which are repugnant to the Australian community. I consider that Mr Dunbar has fallen short of the expectations of the Australian community. The Australian community would expect that he not be granted a visa.
…
I have considered Mr Dunbars' ties to the Australian community and any disruption that might be caused to these ties by the refusal of the visa application:
…
Part E: Decision
I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of 501 Migration Act 1958, (2) the Minister's Direction under 499 of the Act and the applicant's comments, and have decided that:
Mr Kevin Marion DUNBAR does not pass the character test, has been unable to satisfy me that he does pass the character test and is refused the grant of visa."(G18, pages 54-61)

the hearing

At the hearing of the application for review the Applicant was represented by Mr N Poynder of Counsel, the Respondent by Mr I Muthalib and Mr J Gibbs, departmental advocates. The documents lodged by the Respondent were received by the Tribunal and marked G1 to G18. Written material was tendered on behalf of the Applicant, admitted as exhibits and marked accordingly. Such exhibits are:
Exhibit No       Description
A        Letter of 24 November 2000 from Dr Chisholm to Ms A O'Donohue
B        Statement of Mr Kevin Dunbar dated 20 December 2000
C        Letter from Courts Service County Dublin 12 January 2001 to Mr Poynder
D        Statement of Mrs Lisa M Dunbar dated 20 December 2000
E        Letter from Sharon Leong from Land & Property Information NSW
F         Memo 13 December 2000 Phill Hooppell of Land and Property Information
G        Report of Dr S Williams, Psychologist 18 December 2000
H        Letter from the Irish-Australian Welfare Bureau 18 December 2000
J         Letter from Bishop Paul Robinson dated 13 December 2000

The Applicant, his wife Mrs Lisa Dunbar and Professor DJ Chisholm gave oral evidence upon which they were cross-examined.
factual situation
Generally

The Applicant was born in Ireland on 20 May 1954. He is one of 11 children born to his parents now deceased, one of whom lives in England, one in Scotland, eight in Ireland and the Applicant in Australia. He is now by occupation a contract cleaner. Prior to his arrival in Australia on 30 June 1998 he had been employed in Ireland in various activities generally of an unskilled nature.
It was whilst she was in Ireland on holiday in 1997 that the Applicant met his now wife, Mrs Lisa Margaret Dunbar, this at a function held by the Dublin Deaf Association. She was then 32 years of age, having been born on 12 August 1965, and in order to travel, had taken time off from her position as a Titles Officer with the Land Titles Office Sydney, a position she enjoys and considers her career.
Following his release from prison in 1995, the Applicant had involved himself with the deaf community, becoming fluent in sign language. It was whilst he was in prison that he became aware of the problems besetting the deaf community, being involved in "the Braille Shop" and became "fascinated by the subject". He took a course in Braille and taught himself to communicate in sign.
The relationship between the Applicant and Mrs Dunbar developed quickly and by September 1997 they were residing in Ireland together. Mrs Dunbar engaged in some travel in the United Kingdom and Europe but continued living with the Applicant on and off between her travelling.
The Applicant and Mrs Dunbar travelled to Australia in June 1998 and married in Australia on 9 October 1998. Initially they had thought of marrying in Ireland and there remaining. Mrs Dunbar had wanted the Applicant to meet her family in Australia before they committed themselves to marriage. The decision to marry in Australia and endeavour to both thereafter live here came to pass after Mrs Dunbar's return from Ireland, time spent with her family and her return to work at the Land Titles Office. She says that she began to realise her situation in Australia "was far more comfortable" so far as her hearing problem and diabetes condition were concerned and she would have difficulty in obtaining the same level of support for her disabilities in Ireland as she enjoyed in Sydney.
The Applicants application to remain in Australia was lodged in December 1998.
As afore mentioned, Mrs Dunbar experiences health problems. She has since birth suffered from a significant hearing impairment having been born with the disability due to rubella. She has been an insulin dependant diabetic since March 1989. Her level of diabetes is described as "severe type one"; she must test her blood sugar level and take insulin four times per day. More specifically and as she stated in her evidence:
"My diet is heavily regulated and I am required to eat certain amount of food containing high contents of carbohydrates like bread, biscuits and some fruit at strictly controlled regular intervals. I must have either a meal or a snack every three hours between the hours of 6.30am and 9.30pm. If I miss my insulin or any meal throughout the day my blood sugar levels drop and I go into a hypoglycaemic episode. I see Dr Chisholm every three months to monitor and control my condition.
I take two different types of insulin, one long-term acting and another one for short term control. If I go into "hypo" I must have some quick intake of sugar like lollies or lemonade and someone must be able to inject me with insulin urgently or I must be taken to hospital." (exhibit D)

criminal conduct of the applicant

The criminal history of the Applicant as detailed by the Irish Police Authorities is:
DATE:           22 May 1970
COURT:       District Court 4, Dublin
OFFENCE:   Loitering, Interfering with Mechanism
RESULT:     Fined 10 Pound
DATE:           21 October 1976
COURT:       District Court 4, Dublin
OFFENCE:   Indecent Assault
RESULT:     Bound to the pease 1 year; fined 10.00 Pound
DATE:           18 March 1981
COURT:       District Court 6, Dublin
OFFENCE:   Indecent Exposure
RESULT:     1 month imprisonment, suspended; fined 250.00 Pound
DATE:           1 April 1993
COURT:       Dublin Circuit Court
OFFENCE:   s.2 Criminal Law (Rape) Act 1993 (3)
RESULT:     3 years, 6 months imprisonment

As to the March 1981 conviction, the Applicant says that the offence occurred when he was travelling in the upstairs area of a double-decker bus. Two young girls had been smoking, were giggling and looking in his direction. He said that the atmosphere triggered in him feelings of guilt, fear, agitation and secrecy, which he associated with sexual expression. "I pretended that the girls where not looking at me and exposed myself to them". He was in due course confronted by the police and admitted the nature of his conduct.
As to the 1993 conviction, the Applicant said that he pleaded guilty "to and was convicted of both indecent exposure and sexual assault in that I put my hand down their pants and touched their privates, both of them where my nieces". He said that these offences involved two daughters of a sister who where at that time approximately 12 and 13 and with whom "I had built up an ongoing rapport and trusting relationship". His family seemingly reported the matter to the police and according to the Applicant on his arrest he:
"…experienced the most significant turning point in my life. I became aware that the people whom I wanted to safeguard the most were all aware of my problem. It was at this point that I made a serious decision to radically change my life."

With the police he:

"…confessed to every singly sexual assault or bad thought I could ever remember. It was like being in a confessional. This was also the moment when I first began to recollect sexual assaults that had been perpetrated upon me as a child."

Whilst the reasons for sentence imposed on1 April 1993 by the Dublin Circuit Court are not before the Tribunal, it is noted that the initial sentence was in due course reduced to a period of 21 months.
In his written statement, the Applicant made mention of two counts upon which he was sentenced in 1993. It was only when a record of convictions was obtained from Ireland that a third count appeared. They each related to similar conduct by the Applicant with his nieces at or about the same time. The Respondent submitted that the omission by the Applicant to make mention of the third count reflected upon his truthfulness a witness. As it transpired the Applicant had also not mentioned the circumstances of the third count to his wife. She said that she was surprised at the omission. The Applicant said that it was as to the events that he had pleated guilty and that he had had no recollection as to the way in which the events were dealt with so far as an indictment was concerned. The Tribunal accepts the evidence of the Applicant and does not consider that he was endeavouring to deceive or mislead his wife or the Tribunal.
relevant legislation, regulations and directions
So far as here relevant section 501 of the Migration Act 1958 ("the Act") 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:
the person has a substantial criminal record as defined by section (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
…"
The Minister has issued directions under section 499(1) of the Act. The Direction in paragraph 17.2 provides:
"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 should note that no individual considerations can be more important than a primary consideration but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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."

The Direction in paragraph 17.2.6 provides examples of offences considered to be very serious. These include crimes against children in that:
"…due to their vulnerability as victims and potential victims crimes against children take on a special significance especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence against children, kidnapping and crimes taking advantage of children".

The 1993 offences in respect of which the Applicant was convicted fall within this category.

With reference to a primary consideration being the Expectations of the Australian community paragraph 17.2.12 of the Minister's Direction provides:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or were there is significant risk that they will breach this trust or were the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns are such that the Australian community would expect that the person not be granted a visa or should be removed from Australia..."
When considering the issue of visa refusal or cancellation, paragraph 17.2.17 of the Minister's Direction provides that
"other matters although not primary considerations may be relevant. It is the Governments view that were relevant, it is appropriate that these matter be taken into account but that they be given less individual weight than that given to the primary considerations".

the character test

The issue as to whether the Applicant does or does not pass the character test was not really contested in this application. Indeed on behalf of the Applicant it was accepted that the Applicant could not pass the test by reason of the 1993 conviction which constituted a substantial criminal record within the meaning of section 501(6) and (7) of the Act.
On the basis of the evidence placed before it, the Tribunal is satisfied that the Applicant does not pass the character test.
discretionary relief under part 2 of direction 17
The Tribunal being satisfied that the Applicant does not pass the character test, that he is not a person of good character, the application is to be refused unless the discretion vested in it pursuant to the Act and the Minister's Direction can be exercised in his favour. In this regard as already mentioned in these reasons, the Tribunal is to assess the weight appropriate to be given to the primary considerations and the other considerations.
Primary Considerations
Protection of the Australian Community
Seriousness and Nature of the Conduct
The delegate in her reasons for the decision under review maintained that the "sexual assaults" in respect of which the Applicant was convicted "are particularly repugnant to the Australian community".
On behalf of the Applicant and whilst not seeking to minimise the serious nature of the 1993 convictions, it was submitted that the other offences committed by the Applicant were not of a like nature. That in 1970 related to loitering and interference with a motor vehicle. That in 1976 whilst involving a child was to be seen as an impulsive act this reflected in the minimal sentence imposed. That in 1981 was not a sexual assault involving young children. Considerable time had lapsed between all of the offences and since the 1993 offence. Further it was said mitigating factors that should be considered were the Applicants background history, his cooperation with the police and his pleas of guilty.
The Respondent did not concur with the position taken on behalf of the Applicant. More particularly it was said that the offence of sexual assault is considered by the Australian community to be very serious, a "heinous offence" , and especially so as the offences were perpetrated upon children. It was further submitted "that the Applicants criminal record reveals a continued and sustained pattern of sex crimes and it would be reasonable to conclude that the risk of recidivism is high". Recidivism will be considered shortly in these reasons but the Tribunal does not see the record of the Applicants convictions as revealing "a continued and sustained pattern of sex crimes". Nor does it see the nature of the offences as indicating an escalation in seriousness of the offences, even be it that the 1993 offences were much more serious than those earlier committed.
The Tribunal accepts the evidence of the Applicant to the effect that he was at relevant times a disturbed man who had not been able to rationalise or fully understand the pressures that had been placed upon him as a young person and the means whereby he was to associate effectively with other members of the community, particularly female members. The 1993 offence was clearly serious and is to be seen as such by the Australian community and the Tribunal. However, it is to be measured in the context of the circumstances then existing and the effect that confession and conviction had upon the Applicant.
Likelihood that conduct may be repeated – recidivism

The delegate stated in her reasons:
"…I do not accept that the risk of recidivism is low for the following reasons:
Mr Dunbar has committed a pattern of offences, which led to his conviction in 1976 for indecent assault, in 1981 for indecent exposure and in 1993 for indecent exposure and the sexual assault.
Secondly there is no certainty, particularly in view of the substantial periods between his past convictions that he would not repeat his past behaviour. Whilst Mr Dunbar's last offence occurred more than seven years ago, the length of time that has pased is not an indicator that future offences will not be committed.
There is no evidence that Mr Dunbar is completely rehabilitated. Whilst the letters from Dr Hardiman, psychiatrist and Mr Heneghgan, counselling psychologist confirm that Mr Dunbar attended extensive counselling, they do not address the extent of rehabilitation Mr Dunbar achieved. The only information available is Mr Dunbar's assessment that counselling was 'helpful and rewarding'…Except for the fact that there have been no convictions since 1993, there is no evidence that Mr Dunbar will not re-offend".G18, pages 58 and 59)
The Applicant has undergone counselling both before and after the commission of the offence for which he was sentenced in 1993. In his evidence before the Tribunal he stated:
"During the period between being discovered by my family and being sentenced to a prison term I attended counselling with Dr McCormack, whom I had been seeing sporadically as a result of my previous convictions. When I expressed to him that I did not feel that I was making progress, he told me about group therapy sessions, which were available with other sex offenders.
I would have attended group therapy approximately 50 or 60 times prior to being sentenced. During that time I found that all my previously held ideas, opinions and attitudes were challenged in an open forum. Things I held to be true were sometimes ridiculed in the process. I found many similarities between my circumstances and those of the other members of the group. I also came to learn the many similarities in the methods we all used to gain the trust of children including the use of manipulation. Each other member of the group was like a mirror to me and I did not like what I saw.
A little counselling was made available to me during my time in prison and although it was only minimal I found it extremely helpful."(exhibit B)
On his release from prison the Applicant attended the counselling psychologist, Mr Heneghgan for a period of approximately 18 months. The Applicant said that the most useful aspect of these sessions was in developing control mechanisms "which I could employ preventing myself reoffending".

In the course of his oral evidence before the Tribunal, the Applicant said that his arrest by the police in connection with the 1993 offences was:
"…a turning point in my life. I sought out counselling myself and found out about group therapy. It was horrendous for me, pretty devastating, it made me take a real look at myself ".

He said that in due course the counselling equipped him to recognise potential problems and put him in control of himself. While he had earlier realised that he had a problem, he did not know what it was. He had not felt right about urges and thoughts that he had and in fact had led a "tortured life". He had never wanted to accept responsibility but from the time he was arrested he did accept full responsibility for his acts and "I have continued to do so".

The extent of the attendances by the Applicant at a centre for counselling and for group therapy is detailed in evidence before the Tribunal from the Eastern Health Board, Dublin, Ireland. Mr Heneghgan, the counselling psychologist, refers in his material to the Applicant attending weekly sessions of one and half-hours each in 1995 and 1996.
The possibility of the Applicant committing a further offence or offences of a nature similar to that in respect of which he was sentenced to imprisonment is an aspect very germane to this decision. The position taken by lay and professional people is elsewhere discussed.
In his evidence before the Tribunal the Applicant said that his attitude to children has:
"…radically changed since therapy. In the past I would have been afraid to be in the company of children and to even consider the remote possibility of having children of my own due to many fears and apprehensions. My attitude is now the opposite of this. I believe that I or any individual can gain understanding, awareness and inside into their sexual disfunction to equip them to deal with thiese problems and lead a normal life". (exhibit B)

The Applicant further spoke of the effect of meeting his wife had had upon him, and the opportunity this provided to express feelings and emotions that otherwise might have been repressed.

When first told by the Applicant about his criminal record Mrs Dunbar said she was:
"…shocked, it was not at all consistent with the Kevin I had come to know. He explained the situation openly to me over several days. As I listened to all the details of the offences I came to get a complete picture of all the circumstances. He was always honest and open with me whilst telling me this information". (exhibit D)

The Applicant informed his wife about the counselling and group therapy and the effect this had had upon him and his behaviour in the company of children. She said that she has now observed him:

"…many times with children and he is always like a father figure to them. He communicates well with tem and they have a lot of fun playing with him like they would with any adult".(exhibit D)

Mrs Dunbar said that she had "absolutely no doubt that Kevin will never again commit any offences in the future". She spoke of the openness and strong relationship that exists between them. Indeed she went further and said:

"I feel it is my destiny to be with Kevin. We have a strong bond together and I would be devastated without him in my life. I have every confidence that he presents no danger to the Australian community and especially to children. If this were not the case, I would never contemplate starting a family".(exhibit D)

The Applicant consulted Dr Sid Williams, a consultant psychiatrist, who in his report tendered before the Tribunal, after detailing the case history given to him, said:
"10. It is now eight years since the third offence. This of itself does not provide convincing evidence that Mr Dunbar would not re-offend. However, Mr Dunbar has made very significant changes in his view of life since then. I thought his account of the sense of relief he felt when he was discovered and when he was given an opportunity to divulge his "guilty secret", was convincing and reassuring. I think it did correspond to a major reorientation in his thinking. I think he still has difficulty with making a connection between his emotional state and his cognitive state. That is, he remains superficial and fairly artificial in his way of relating to others and in his account of his own psychological and emotional state. But this is not a major problem in itself, provided it is not linked to the deviant behaviours previously present. His relationship with his wife appears to be a much more mature adult relationship than any he has previously been involved in. This relationship can help, and appears to be helping him to develop an even more mature view of other people. If this marriage were to fail this might increase his risk again of reoffending.
11. In assessing the risk of Mr Dunbar reoffending, I will attempt to tease out and discuss those factors, which point toward a high risk, followed by those which point toward a low risk.
11.1 The features indicating antisocial personality traits point toward a higher risk. That is, he exhibited early in life some difficulty with authority, sufficiently marked as to interfere with his education for almost a year; he speaks of learning to lie to gain an advantage from his early years; he does not show the degree of remorse I would expect in speaking about his offences; and he has four convictions for socially unacceptable behaviour. As indicated in paragraph 7 however, the intensity of any of these features does not indicate severe psychopathology.
11.2 He demonstrates some continuing difficulty in distinguishing his own thoughts, desires and needs from those of others (see paragraph 8).
11.3 I gained a clear impression that, while there were personality features in Mr Dunbar's case, which contributed to the offences, there was also a very significant cultural factor. Mr Dunbar grew up with ideas that all sexuality was essentially wrong and subject to secrecy. He initially missed opportunities to develop a mature, mutual, affectionate sexuality and instead moved toward "paraphilic" modes of expressing his sexuality. When these were fully exposed and he was punished, the behaviour was exposed to the light of day and this was allowed a major reorientation in his life (see 11.5 below).
11.4 Without wishing to debase his relationship with Ms Dunbar or to depreciate Ms Dunbar herself, it could be argued that his involvement with the hearing and visually impaired community generally is related in part to his need to be involved in relationships with others less powerful and able than himself. However, I feel Ms Dunbar herself will not subvert her own desires, wishes or intelligence to anyone, including her husband, nor allow anyone not to treat her as an autonomous and equal person.
11.5 I accept Mr Dunbar's account of the secrecy and compartmentalisation of his sexual activities before he was charged with the third offence (leading to the conviction on 1/4/1993). I also accept his account of the great sense of relief he felt at confessing to the offences, the sense of catharsis this engendered and how this changed irretrievably his subsequent life. I think this argues strongly against any risk of re-offences.
11.6 I think that his marriage, as well as being "therapeutic" in many ways, can assist in another way in preventing any risk of re-offence. From Ms Dunbar's response to my questions about the sexual offences (pars. 26, 27) I gained a clear impression that she would not tolerate for a moment any evidence of her husband's inappropriate or abusive sexual behaviour. She appears not only to hold clear moral views on this subject, but to have a clear ethical basis for these views. That is, she stated to me as the basis for her views, not an arbitrary rule against such behaviour, but a more reliable ethical basis, involving concepts of autonomy and consent. While not wanting to make Ms Dunbar the probation officer for her husband, it might be reinforced to her that if her husband stays in Australia, she should report any inappropriate behaviour on his part. Should the marriage fail (and there is no suggestion it would), this should also trigger a report to immigration authorities. I also think as a means towards avoiding secrets and maintaining openness, both Ms and Mr Dunbar should be a able to read this report." (exhibit G)

In the conclusion and summary to his report Dr Williams said that he thought that the risk of the Applicant re-offending "is very low…if he is allowed to remain in Australia and if he remains in a relationship with Ms Dunbar".

As already mentioned a number of references detailing subjective assessments of the character of the Applicant were before the Tribunal, the same including those from a sister from the Dominican Order and a Bishop of the Church of Jesus Christ of Later Day Saints. They speak well of him, of his close relationship with his wife and of her dependency upon him.
On the basis of the whole of the evidence before it, the Tribunal is satisfied that there is a low likelihood that the Applicant will repeat the conduct for which he was convicted or engage in like conduct.. The Tribunal accepts the evidence of the Applicant as to the effect upon him of his arrest, the counselling that he underwent and experienced and accepts that the further counselling had a most beneficial effect upon him. The evidence of Dr Williams is persuasive and being without challenge is accepted by the Tribunal. The relationship existing between the Applicant and his wife and the support one gives to the other is in further aid of this assessment.
Refusal of visa preventing / discouraging similar conduct
The Delegate in her reasons stated that the "refusal to grant him a visa may deter other applicants with criminal records from entering the country with the intention of seeking permanent residence".
It is noted that the Applicant did not enter Australia with the intention of seeking permanent residence. Indeed his intention at that time was after a short stay to return to Ireland and there marry his present wife. It would seem that it was she more then he who determined that they should endeavour to both remain in Australia.
On behalf of the Respondent it was submitted that a refusal of the present application would:
"…send a clear message to other members of the community who have engaged in similar conduct that such conduct is not acceptable for the Australian community and non-citizens can expect to have their visa applications refused if they have engaged in a similar conduct".
On behalf of the Applicant it was said that the delegate was in error in giving weight to this criteria as a means of deterring other applicants from entering Australia with the intention of seeking permanent residence. The Applicant did not enter Australia with this intent. As the Tribunal perceives the situation there is little evidence in the nature of deterrence relevant in the present matter. The particular circumstances are singular. Refusal of a visa to the Applicant would not be a relevant factor in the context of deterrence.
Expectation of the Australian community
The delegate stated that:
"Mr Dunbar can not expect any member of the community to tolerate the nature of his crimes…he has been convicted of serious crimes which are repugnant to the Australian community. I consider that Mr Dunbar has fallen short of the expectations of the Australian community". (G17, page 59)

On behalf of the Respondent this contention is maintained and it is submitted that a refusal:

"…may be appropriate simply because the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa…the abhorrence that the community would hold in relation to his sex crimes against children is significant."

Matters relevant to be considered under the subheading Expectations of the Australian Community are separate and apart if not distinct from those discussed under the subheadings Protection of the Australian Community and Seriousness and Nature of the Applicants conduct. When looking to the expectations of the community it is the view of the Tribunal that the conduct of the Applicant has then to be considered in the context of the circumstances existing at the time the application is the subject of determination. That is the issue raised is the expectations of a member of the Australian community who is aware of the relevant circumstances and is able then to make judgement as to the course appropriate to be taken. Such matters are the sentence that has been served, the reaction of the Applicant to the sentencing process, questions of remorse, rehabilitation, subsequent behaviour and the relationship existing between the Applicant and his wife, she being a member of the Australian community.
The Tribunal does not see the expectations of the Australian community being adverse to the Applicant when his criminal conduct is seen in light of the then and subsequent relevant circumstances.
Best Interest of a Child
There are not any children relevant to this application.
Other considerations
In her statement of reasons provided in support of the decision under review the Delegate stated:
"There is however no evidence that Ms Atkinson {Mrs Dunbar} is either physically or financially dependent upon Mr Dunbar.
When Ms Atkinson decided to marry Mr Dunbar she knew that he was a person of character concern and that he had been convicted of crimes the Australian community considers repugnant. She also knew that he had not been granted a visa to remain permanently in Australia. Her capacity to make compassionate claims is diminished by her knowledge.
I am mindful of Ms Atkinson health problems, i.e. her hearing impairment and diabetes and that she may suffer some hardship as a result of her medical conditions. However there is no evidence that Ms Atkinson would face undue hardship because of her medical conditions if she were to accompany Mr Dunbar to Ireland. There is no evidence that medical and / or support facilities are not available.
Whilst there is no doubt that the marriage is genuine and any hardship she may suffer by the refusal of the visa application is a relevant consideration, it is appropriate to give such a consideration less individual weight than that given to the primary considerations. I consider Mr Dunbar's criminal conduct outweighs any mitigating circumstances of marriage to an Australian citizen".(G17, pages 60-61)
health of mrs dunbar and consequences of a deportation
As already mentioned earlier in these reasons Mrs Dunbar has problems associated with her hearing impairment and diabetes.
More particularly she has been deaf all her life and has been an insulin dependent diabetic since March 1989. Her level of diabetes is known as "severe type 1". Mention has already been made of the necessary daily readings and her specialist dietary requirements. She has been in her present employment for approximately 15 years and considers it unlikely that she would be able to obtain comparable employment if employment at all in Ireland.
"The diabetic services available in Sydney are far superior to those available to me in Ireland. Having spoken to a diabetic in Ireland I know that it would be more difficult to obtain support I receive from the Diabetic Association here in Australia". (exhibit D)

Even be it that in 1997 she did travel in Europe and Ireland she in the former instance travelled with a group yet experienced problems associated with her diabetes. On occasions she was exhausted and blacked out and required glucose injections. She gave evidence about the strict regime that she is required to follow in order to manage her diabetic condition, and of the assistance she needs from time to time both at home and at her work place. Whilst admitting to being a fairly independent person she is dependent upon the presence of others and their ability and willingness to provide assistance to her.

Bishop Paul Robinson of the Church of Jesus Christ of Later Day Saints, spoke of the health of Mrs Dunbar and the need for her to have assistance.
Professor Donald Chisholm, Professor of Endocrinology, a consultant at St Vincent's Hospital, has had Mrs Dunbar as a patient for about ten years. He sees her approximately three times a year. In describing her condition he said:
"She has severe brittle type 1 diabetes which requires multiple insulin injections each day and multiple tests of her blood glucose levels. She is susceptible to low blood sugar reactions (hypoglycaemic reactions), which can sometimes cause impaired consciousness or even coma.
She therefore requires a lot of support from a spouse or family member in dealing with her medical condition. If this were not available, her difficulties would be very great and the risks of significant illness, which would represent a cost to her health care system, would be substantial. If Mrs Dunbar had to leave Australia with her husband, it would also represent a sever hardship, as she would lose the additional family support that she receives here – and also would lose the strong systems of support that are available in Australia for patients with type 1 diabetes – which are not available in most other countries in the world. …Mrs Dunbar not only has severe type 1 one diabetes, which is quite brittle, but also suffers from the congenital Rubella syndrome and is quite deaf. This creates an extra degree of importance for the availability of a spouse or family member as communication regarding her medical problems can be quite difficult for Mrs Dunbar." (exhibit A)

Dr Chisholm in his report detailed the major problem in her diabetes management that would be experienced if she had to travel and relocate in another country. Amongst such problems would be the loss of her other family support, the loss of the availability of supplies for diabetes management and support and the loss of the supply and support arrangements. It was noted by Dr Chisholm that inspite of the difficulties associated with her diabetes, deafness and congenital Rubella syndrome, that with the support of the Applicant Mrs Dunbar "manages her condition very well and has relatively little in the way of diabetic complications at this time". In his oral evidence Dr Chisholm spoke of the developed facilities for the management of diabetic patients available in Australia, the same not being to hand in Ireland. Mrs Dunbar produces no insulin and is totally dependent on injections. If it should transpire that she become pregnant the outcome could be good according to Dr Chisholm, but it would require very intense contact with a physician not less than once a week. Dr Chisholm believes that Mrs Dunbar would be putting her health at risk, especially if she were pregnant, in travelling to and residing in Ireland. Assistance and management is not as readily available in that country as in Australia.

Dr Williams, the consultant psychiatrist, who had spent time with both the Applicant and Mrs Dunbar in aid of preparing his report said that Mrs Dunbar "impressed me as a very sensible and mature person who has overcome major difficulties in life with bravery and good sense". She had been quite disturbed throughout the interview conducted by Dr Williams "but able to control her feelings and give coherent and sensible answers and comments". She in response to a question put to her found it impossible to fully contemplate the possibility of the Applicant having to leave Australia. For a time she became distressed and unable to communicate.
The Tribunal accepts the evidence of Mrs Dunbar not only as to the effect that her disabilities has on her and her way of life but also as to the degree to which she is physically and emotionally dependent upon others.
relationship of the applicant and his wife – degree of dependency
The Applicant says whilst it was difficult for him at first, he has now learned how he can best assist his wife when the need arises. The fact that he is fluent in sign enables him to also support her in making contact with friends, socialising and maintaining a community network. Since the 10 November 2000 he has been in detention at the Villawood Detention Centre, thus separated from Mrs Dunbar. Of necessity she returned to the home of her parents where she has remained living to this time. In the event of the Applicant being able to remain in Australia, they would re-establish their household. The Applicant said upon being so separated from his wife that he has experienced great fear for her safety and felt that she was in danger. He expressed concern at the forced separation of himself from his wife, he thought that it was "pretty cruel actually".
Mrs Dunbar said if the Applicant was not allowed to stay in Australia, she would "simply be devastated". She said that she fears that she cannot do without his support, "love and understanding for me". She would like to have children. She anticipates difficulty that she would face as a single mother on her own given that her medical problems are well above those of a healthy parent and if it should transpire that she have a child with a hearing impairment she might not be able to teach the child to communicate without having the Applicant to help her. If the Applicant was forced to return to Ireland she would be without necessary physical and emotional support, she not being able to rely upon her parents who are now elderly. "I have great fears that I have no one to assist me with the daily routine required to control my diabetic condition".
Mrs Dunbar says since she began living with the Applicant she has become increasingly dependent on him, he having "taking over the role my parents used to have in looking after my health". He makes sure that she has her insulin. Since he has been in detention at Villawood she has forgotten to take the insulin on several occasions. She relies on him for support and takes comfort in the fact that he constantly enquires as to her blood sugar reading and ensures that she maintains her routine. He supports her in communicating with hearing people and interprets for her during phone calls. He is able "to translate things from a perspective of a hearing person to that of a person who uses the sign language". She says he has a very good relationship with her family and he gets on well with her friends, of whom all are deaf. He understands the different foods that she is able to eat and the dosage for her syringe. He understands what diabetes is about and she is confident with him. Since he has been in Villawood, she has been "very scared" and whilst moving back with her mother and father has little confidence in them, they being unable to communicate in sign and their health is failing. She says that she is confident of her future relationship with the Applicant and wants to have children by him.
Mrs Dunbar said the Applicant told her of his convictions about one month before they got married, she not being aware up until this time that he had spent time in detention. She regards her husband as an honest person.
The President of the Irish-Australian Welfare Bureau, having known Mrs Dunbar for some time and having come to know the Applicant of recent date, speaks of the strong commitment he has observed that they have for each other. The President assisted Mrs Dunbar in her relocation after the Applicant was detained and said during this time he became very aware of the extent to which she relies on the Applicant in order to conduct her affairs. "Her acute deafness makes the simplest task difficult for her, as of course she can not communicate by telephone".
Dr Chisholm in his report says that the degree of hardship for Mrs Dunbar "would be extreme if her husband would not be able to reside in Australia". Dr Williams also spoke of the assistance afforded by the Applicant and the importance of this assistance to her. In summary he said that he thought, Mrs Dunbar's relationship with the Applicant had been very good for her and:
"…has survived the realisation of his past. If he were unable to stay in Australia she would have to follow him to Ireland. This could be almost unbearably distressing for her, her work opportunities would be very limited or not existent and we would lose a fine Australian."
The Respondent contended, that Mrs Dunbar decided to marry the Applicant knowing that he was a person of character concern in that he had been convicted of serious sex crimes. It was said that the ability of Mrs Dunbar to make compassionate claims is diminished by her knowledge. It is apparent however, that the awareness of Mrs Dunbar occurred shortly before their marriage and that at the time of the relationship becoming significant to each of them, she was not aware of the past convictions. It was further submitted on behalf of the Respondent that there was no evidence that lack of medical facilities in Ireland would be a cause of concerne or that they were other than comparable with those in Australia. Dr Chisholm gave evidence to the contrary, maintaining that the facilities and their availability in Australia far surpassed those existing and available in Ireland. The degree of physical and emotional dependency of Mrs Dunbar on the Applicant has already been discussed.
decision
On behalf of the Respondent it was contented that the criminal conduct of the Applicant outweighs any mitigating circumstances of marriage to Mrs Dunbar, and that insufficient time has elapsed since the convictions to adequately determine the extent of the Applicant's rehabilitation. The crimes committed by the Applicant were admittedly serious although the Tribunal does not accept as submitted that their gravity increased over time. The nature of the offences was distinctly different, as was their significance as measured by the penalties imposed. The likelihood of the Applicant re-offending is low. The Tribunal does not accept the Respondent's submission that the risk of recidivism is high or that sufficient time has not transpired to measure the change that has occurred in the Applicants perception of himself and his past errant conduct. The expectations of the Australian community are seen as has already has been discussed.
It was submitted on behalf of the Applicant that removal of the Applicant from Mrs Dunbar would cause extensive disruption to their family. The marriage is genuine, "characterised by mutual love, commitment and support". Great hardship would be likely to occur to Mrs Dunbar. There was no evidence other than that the recent conduct of the Applicant was and his present conduct is good. Whilst accepting the seriousness of the 1993 offences, the other primary considerations are not of significance overall in this matter. There is no measurable concern for the protection of the Australian community that warrants further consideration and recidivism is of low significance. The relationship existing between the Applicant and Mrs Dunbar is firm and supportive. The expectations of a fully informed Australian community would not be adverse to the Applicant.
The Tribunal gives full weight to the primary considerations but finds that other than in relation to the seriousness of the 1993 offences per se, recidivism or deterrence are not of any significant weight. The expectations of the Australian community are likewise not of great weight in an adverse sense. The other considerations as already discussed are of significance and when taken together outweigh the only significant primary consideration.
Accordingly it is the view of the Tribunal that the decision under review should be set aside and the Applicants application reconsidered in the absence of an adverse finding pursuant to section 501 of the Act.
The Tribunal therefore determines and directs that:
(a)      the decision under review is set aside;
(b) the discretion under section 501 of the Act be exercised in favour of the visa applicant; and
(c)       the subject visa application be remitted to the Respondent for further re-consideration.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. RNJ Purvis, QC.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  16 January 2001
Date of Decision  31 January 2001
Advocate for the Applicant      Ishan Muthalib
Counsel for the Respondent    Nicholas Poynder
Solicitor for the Respondent    Anne O'Donohue