Eaton and Minister for Immigration and Multicultural Affairs - [2001] AATA 992

DECISION AND REASONS FOR DECISION [2001] AATA 992

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1904

GENERAL ADMINISTRATIVE DIVISION        )
           Re      Norma Eaton
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date6 December 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 should be exercised not to refuse the grant of a sub-class 676 (visitor) visa to Michael James.
  ..............................................
  Mr R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Visitor visa – character test – white collar crime - where Visa Applicant convicted of twenty counts of theft and misappropriation in relation to a company of which he was a director – whether "substantial criminal record" under the Migration Act -– exercise of discretion – balancing of primary and other considerations - protection of the Australian community – seriousness and nature of the offences - risk of recidivism - general deterrent effect of refusing to grant a visa

Migration Act 1958; ss 499(1), 499(2), 499(2A), 501(1), 501(6)(a), 501(7)
Migration Regulations 1994: Schedule 2, clause 676.221; Schedule 4, clause 4001
Ministerial Direction No. 21 "Visa Refusal and Cancellation under s 501"

Re Munro and the Minister for Immigration and Multicultural Affairs [2000] AATA 908
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

6 December 2001 R P Handley

This is an application by Norma Eaton ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 30 November 2000 to refuse the grant of a sub-class 676 (visitor) visa to the Applicant's son, Michael James ("the Visa Applicant").
At the hearing, the Applicant represented herself and the Respondent was represented by Leonard Leerdam, Solicitor, of Sparke Helmore, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and in person by the Applicant.
BACKGROUND
Ms Eaton was born on 12 August 1937 and is aged 64. She moved to Australia from New Zealand in January 1980 and became an Australian citizen on 16 September 1983. Ms Eaton has two sons: Michael James, formerly Michael James Eaton, who was born on 29 September 1959 and is aged 42; and Stephen Eaton who was born on 2 January 1961 and is aged 40. Both live in New Zealand.
On 17 November 1983, Mr James was convicted of the offence of possession of a cannabis plant for supply and fined NZ$600. On 1 May 1990, he was convicted on twenty counts involving theft, false statement and misappropriation related to his role as a director of the company Kinetic Investment Services, for which he was sentenced in the District Court at Auckland to a period of four years imprisonment. He was released in April 1992 and discharged from bankruptcy on 21 March 1993. In May 1993, the Applicant was refused a visa to visit his mother in Australia. On 25 February 1994, Mr James lodged an application to migrate to Australia which was refused on 23 May 1994 on the ground that he met neither the "good character" requirement nor the minimum points requirement for further processing of his application. On 20 October 1998, Mr James was granted a visitor visa, valid for one week, which he used to visit his mother from 23 to 27 October 1998.
On 20 November 2000, Mr James applied for a sub-class 676 (visitor) visa to enable him to visit his mother. On 30 November 2000, a delegate of the Respondent refused the grant of a visa pursuant to s 501(1) and s 501(6)(a) of the Migration Act 1958 ("the Act") on the ground that Mr James had a substantial criminal record and did not, therefore, pass the character test. On 20 December 2000, Ms Eaton lodged an application for a review by the Tribunal.
APPLICABLE LAW
Under s 501(1) of the Act, the Minister may refuse the grant of a visa to a person if the person does not satisfy the Minister that 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 if one of a number of grounds are met. The relevant ground in the current matter is paragraph (a) where "the person has a substantial criminal record (as defined by sub-section 7)".

Section 501(7) states:

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 twelve months or more;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 676 visa. Clause 676.221 requires that, at the time of the decision, the Visa Applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, Clause 4001 which provides:
Either:
(a) the applicant satisfied the Minister that the applicant passes the "character test"; or …
(d) the Minister has decided not to refuse to grant a visa to the applicant, despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, 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. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr James passes the character test having regard to his criminal record. If the Tribunal decides he does not pass the test, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
ORAL EVIDENCE
Norma Eaton
Ms Eaton said she has lived in Australia since 1980. She works as a financial adviser and insurance agent and runs her own business from premises in North Sydney. She employs one part-time staff member. Ms Eaton said she and her son have always had a close relationship and, after she moved to Australia, he used to visit her on a regular basis. Generally, she also visits New Zealand once or twice a year. For example, she was in New Zealand last week for six days and, previously, in February 2001, when she went on a golfing holiday. In the course of that holiday, she spent one day with her family.
Ms Eaton said after the 1987 stock market crash, her son's business in Auckland expanded exponentially. He had no formal training in futures trading and he was working very long hours, such that he did not have time to spend with her when she visited him. At the same time, he was experiencing marital problems. As a result, he was in poor health and put on a lot of weight. Ms Eaton said by the second half of 1988 his business got completely out of hand and Mr James was unable to control it. It was apparent from his sentencing comments, that the judge recognised Mr James had no intention of defrauding his clients. She has been unable to understand why her son's business partner, Mr Peach, was not also charged in relation to the collapse of the business. Mr Peach was a full director of the company and a co-signatory.
Ms Eaton said her son only pleaded guilty to one offence in relation to his misappropriating company funds from the company's bank account in Sydney. He has always refuted that he committed the other offences with which he was charged. Ms Eaton said she only found out that her son was in Australia in late 1988 after seeing the news reports. He did not contact her and she was frantic with worry that he might commit suicide. She was also being hounded by representatives of the New Zealand media interested in the matter. While Mr James was in Australia and his whereabouts were unknown, he did write to her, saying that he was sorry for all the worry he had caused. However, he gave no indication as to his location and she did not tell the police about the letter because she did not consider it provided any information which would be of use to them. She also does not recall ever being approached by the police. She denied that she had not revealed the letter to the authorities in order to protect her son. She said this had never entered her mind.
After Mr James was stopped for speeding in January 1989 and detained, Ms Eaton went to Melbourne to visit him and discuss the extradition proceedings, she spoke with him briefly and provided him with a set of clothes for a court appearance. Later, after he had been extradited to New Zealand, Mr James asked her to go to Melbourne to locate the bullion dealer to whom he had sold one or two gold bars, so that he could provide this information to the investigating New Zealand police. Mr James told her that he and Ms Frampton, his then girlfriend, had flown to Australia for a holiday around the time of the Labor Day weekend in October 1988. He said that while in Australia, he realised that things had got on top of him and so decided to stay.

Ms Eaton said she had assisted her son financially while he was in prison so that he could undertake some further training. This has enabled him to set up in business as a computer consultant. Mr James has also remarried and has a loving relationship with his wife. His wife has established a natural health business with which he assists her. She is now well-respected for her work in this field. Ms Eaton said her son had told her he would never handle anybody else's money for investment again. He is still very conscientious about his work, but is now a more rounded person who is in control of his life and looks after his health. Ms Eaton said she grieves deeply that her son is unable to visit her in Australia while the rest of her family can. By his coming here to Australia, away from him home environment, he can relax and they can discuss things. She has given him her power of attorney and he is the executor of her will. While she is presently in good health, she would like her son to come to be with her if she needs him. She is now almost ready to sell her business and retire and her sole objective in pursuing the grant of a visitor visa for her son is to enable him to come and visit her for a week or so, may be every one or two years.
With regard to Mr James' attempted visit to Australia in 1993, Ms Eaton said when her son told her that he was having difficulty in obtaining a visa, she phoned a friend, Bruce Muddle, the Clerk of the Local Court at Bondi Junction, who referred her to a law firm in Sydney who were supposed to be experts in migration matters. Ms Eaton spoke on the phone to a person at that firm who advised her that even though her son had a criminal conviction, he would still be permitted to make a short visit to Australia without the need for a visa. She therefore phoned Mr James and told him of this advice and said that he could come to Australia without having to obtain a visa. Mr James was very reluctant to come, but she pressured him to do so. Ultimately, he was, of course, turned back at Sydney Airport and had to return to New Zealand. Ms Eaton said it was entirely her fault that her son had come to Australia without a visa on this occasion. She had relied on the legal advice given her by a supposed expert.
With regard to her son's application to migrate to Australia in 1994, Ms Eaton said at that time she had been considering purchasing another business as a means of expanding her own business. She wanted her son's assistance for about two months to help her set up a new office, including in setting up new computer equipment and employing additional staff. Ms Eaton also thought that his involvement might assist in rebuilding his confidence. She did not intend employing Mr James. The proposed arrangement was that she would support him while he was in Australia and it was because they were "family" that he was coming to assist her. They were advised by the Department of Immigration and Ethnic Affairs that in order for Mr James to come to Australia for such a length of time, it would be necessary for him to apply to migrate to Australia. There was also some confusion with the Department over whether her son had previously applied for a visa. He was under the impression that he had already applied for a visitor visa. Ms Eaton said that when her son was unable to obtain a visa to come to Australia, she abandoned the proposed purchase of the additional business.
Michael James (the Visa Applicant)
Mr James attested to the truth of an e-mail statement made on 2 November 2001 (A2, p12). Mr James said he changed his name from Michael James Eaton to Michael James just over ten years ago, prior to his remarrying. He said, in 1988, he travelled to Australia as Michael James Eaton under his passport issued in that name. His current passport, obtained in 1996, shows his name as being Michael James. However, when he applied for migration in 1994, his then current passport was his earlier one which showed his name as Michael James Eaton.
Mr James said that from 1983 he worked as a self-employed insurance agent. The company in which he and John Peach were business partners, Kinetic Investment Services, expanded rapidly after the 1987 stock market crash. Mr James handled sales and marketing. Mr Peach handled finance and trading. Mr James said at the time he travelled to Australia in October 1988, he was completely out of his depth and the business was out of control. He was inexperienced and lacked any relevant qualifications. Mr James recalled his mother had said that his life style was very unhealthy, as did a number of other family members and friends. His marriage had also broken down and he said his ex-wife was harassing him. About a week before he went to Australia, he had a meeting with officers of the New Zealand Justice Department (including Lyal Kennedy). At this meeting, he was asked for certain papers in relation to the business but he was not aware of any problems or that any accusations were being made against them in relation to the company's affairs. Mr James said he informed Mr Peach about what had happened at the meeting and the documents that had been required.
Mr James said he had booked the October Labor Day holiday with Ms Frampton well in advance, including return flights from Auckland to Sydney. Mr James did not travel to Australia with the intention of staying. At the time that he left New Zealand, he fully intended to return. Mr James denied that he had changed any passwords or removed any company records before leaving to go on holiday. He said he made the decision not to return to Australia whilst walking in the Botanic Gardens in Sydney, near the Opera House. After he and Ms Frampton had talked in the Botanic Gardens, she decided to return to New Zealand to sort out her affairs and then come back to Australia to be with him. He and Ms Frampton had arrived in Sydney on a Friday and this happened on the following Sunday. He had felt a great sense of relief being away from his work pressures and the pressures which were being placed upon him by his former wife.
Mr James said he only had a small amount of money with him on arrival in Australia because he was not planning to stay beyond the short holiday which he and Ms Frampton had arranged. Mr James therefore withdrew money from Kinetic Investments' account in Sydney. Kinetic Investments held money was held in bank accounts in Sydney, United States and elsewhere as part of its normal course of business. Approximately, £100,000 had previously been transferred to Sydney from New Zealand. Mr James said it was common practice to transfer funds around the world to the company's broker accounts. Kinetic Investments had a company accountant working for them full-time who looked after such arrangements. Mr James did not initiate the transfer of funds to Australia. This was done as part of the normal course of business. It was the misappropriation of money from this account in Sydney, which was the one count to which he pleaded guilty. He obtained $132,000 worth of traveller's cheques from the Westpac Bank which he used to buy gold bullion.
Mr James said after he had been extradited to New Zealand, he asked his mother to travel to Melbourne to locate the bullion dealer to whom he had sold some of the gold, so that this evidence could be produced in his criminal trial in Auckland. He said he thought this gold would have been of approximately 80 to 100 ounces in weight, small enough to fit in a small travel bag. He also bought a car in Sydney. In all these transactions, Mr James said he used his own name and did not attempt to conceal his identity. He had made a decision to start a new life and made no conscious decision about whether or not to help the authorities. Indeed, he was not aware that the police were searching for him until three or four weeks later, and then he did nothing about it. Mr James said at the time he withdrew the funds from the Kinetic Investments' bank account, he thought he had sufficient personal assets in New Zealand to cover this sum: he had three properties in New Zealand and money in various bank accounts and deposited with financial institutions. Mr James said there was no particular reasons for his not contacting his mother on his arriving in Sydney. He sometimes came to Sydney on business without contacting her. While he was in Australia and before he was detained by the police, he definitely wrote a letter to his daughter in New Zealand and thinks he may also have written a letter to his mother.
Mr James said when he was stopped by the Australian police in January 1989, he showed them his passport knowing what might happen if they realised who he was. He said it was almost as if he was ready to face the problems following the collapse of Kinetic Investments. After his arrest, Mr James co-operated fully with the police and other authorities. All his assets were placed in the hands of the Victorian police and he assumes they were sold and the proceeds returned to New Zealand. All the gold bullion had been spent except one bar, the whereabouts of which he gave to the police and which was recovered.
With regard to the 19 counts to which he pleaded not guilty, Mr James said these concerned letters which he had signed to which false statements had been attached. At the time he signed them, he was not aware that they were false. They were among several hundred statements which he signed without checking them. He said that the money involved in the 19 counts was not used to enrich himself or anyone else and stayed with the company. When he was working through the company's accounts with the liquidator in about February or March 1989, he came to the view that monies which the company held "became muddled and were used incorrectly to pay the overheads of the business" (T 60, p119).

Mr James was asked why his partner, John Peach was never charged. Mr Peach was responsible for finance and trading and was a co-signatory for all transfers of funds. For example, the funds transferred to Kinetic Investments' bank account in Sydney would have been co-signed by both Mr James and Mr Peach. Mr James said he believes that the police did a deal with Mr Peach as part of which Mr Peach agreed to give evidence against Mr James at his trial. Mr James said at the time that he and Mr Peach started the business, futures trading was a very new line of business. He agreed that he had given evidence to a parliamentary select committee examining a Securities Law Reform Bill. He said, at that time, as at all times, he believed that he was acting in the best interests of his clients. Mr James noted that at the time Kinetic Investments collapsed, other futures trading businesses also collapsed and their directors were also prosecuted and imprisoned.
Mr James said when he was extradited to New Zealand, he was not aware that another 19 charges would be laid against him and was very shocked when this happened. Civil proceedings were also brought against him in respect of money owing by Kinetic Investments to clients. He was not represented, nor was he present at the bankruptcy proceedings when he was found liable for approximately $6,000,000. Mr James noted that his criminal trial was being heard at the time the civil proceedings concluded in another court, and the publicity from the judgment against him in the civil proceedings would have meant that the jurors in his criminal prosecution would probably have been aware of that outcome. Whilst Mr James said he accepts the court's decision in the criminal proceedings, he still maintains that he did not knowingly make false statements or misappropriate clients' funds, except in relation to the one instance in Sydney. He was discharged from bankruptcy on 21 March 1993 and has made no further repayments to the creditors of Kinetic Investments since that time.
Mr James was asked about his involvement in 1983 with a health food chain, Total Image NZ Limited, a company operating along similar lines to that of Amway. He said he had been a distributor for Total Image's health products at that time. He became a distributor at the suggestion of his mother, who was a distributor in Australia. Mr James said he knew nothing of investigations into the company by the Department of Trade and Industry who were concerned that it was engaging in pyramid selling. He only knew what he read in the newspapers and understands the company was subsequently cleared.
Mr James was asked about his travelling to Australia in 1993 without a visa. He acknowledged that he had received a letter from the Australian Consulate-General in Auckland dated 7 May 1993 (T31), advising that because of his criminal convictions, he would require a visa for entry to Australia. Mr James said his mother had obtained independent advice from a migration agent in Sydney and told him that he would be able to enter into Australia without a visa, notwithstanding the advice received from the Australian Consulate-General. Mr James therefore reluctantly agreed to fly to Sydney, where he was refused entry and had to return to New Zealand. Mr James said his reluctance to follow the advice obtained by his mother was because he considered he should abide by the rules notified to him by the Australian Consulate-General.
Mr James said his current occupation is that of a computer consultant and he also acts as the practice manager of his wife's business which is a natural health shop. He handles the marketing and accounting functions and maintains the computer operations. He agreed that he had told his mother that he would never again invest money for other people and would always be self-employed. He said he is very ashamed of what happened in the past and has been at great pains to re-establish his life, in which his wife and children are of utmost importance to him. He said while his mother does visit New Zealand when she has the opportunity, he wants to be able to visit Australia to see his mother approximately once a year.
SUBMISSIONS
The Respondent
Mr Leerdam for the Respondent, submitted that Mr James does not pass the "character test" pursuant to s 501(6)(a) and s 501(7)(c) because he has served a term of imprisonment of more than 12 months. The question for the Tribunal, therefore, is whether the discretion not to refuse the grant of a visa under s 501(1) should be exercised in Mr James' favour. This requires a consideration of the application of Part 2 of Direction No. 21.
Mr Leerdam submitted that the Tribunal is bound by the critical facts found by the sentencing judge (T21). Mr Leerdam noted that the judge said he was bound by the jury's verdict, finding Mr James personally guilty on 19 counts. Mr Leerdam contended the jury's guilty finding indicated that they considered Mr James had a guilty mind at the time the acts were committed. The judge also referred to "a strong undercurrent here of misuse of clients' money". However, Mr Leerdam submitted there was no restriction on the Tribunal considering the circumstances surrounding the commission of the offences. He contended that Mr James' flight to Australia in October 1998 was pre-meditated. He misappropriated funds in Sydney and chose to be a fugitive for approximately three months until apprehended when speeding.
With regard to the first of the primary considerations set out in Direction No. 21, the protection of the Australian Community, Mr Leerdam said while the Respondent accepts that Mr James has not re-offended since 1988, nevertheless, the offences of which he was convicted were in relation to serious corporate fraud involving the loss of large amounts of investors' money. He noted Mr James had misappropriated company funds while in Sydney. Some indication of the possibility of recidivism was suggested by Mr James travelling to Australia on 21 May 1993 and being refused entry at Sydney. At that time, he was aware of the advice of the Consulate-General in Auckland that he would be unable to enter Australia without a visa. With regard to deterrence, Mr Leerdam said an affirmation of a delegate's decision would send a strong message to the Australian community that white collar crime is unacceptable. The expectation of the Australian community would be that a visa would be refused in such a case. Ms Eaton is able to visit New Zealand regularly and is Mr James' only family in Australia. Mr James' two children in New Zealand are not affected by Mr James being refused a visitor visa for Australia.
With regard to other considerations, Mr Leerdam contended that any hardship to either Mr James or Ms Eaton is not severe and is more akin to inconvenience, in that Ms Eaton will have to travel to New Zealand to see her son. Mr Leerdam submitted a balancing of the primary and other considerations should lead to the conclusion that the seriousness of the offences committed by Mr James, the circumstances in which he was in Australia as a fugitive, and the deterrent effect required in such cases, outweighed any hardship to Mr James and his mother.
The Applicant
Ms Eaton noted that Mr James had booked a return flight to Australia for his October 1988 holiday before any investigation of Kinetic Investments had been undertaken. Mr James did not believe he had done anything wrong until he took money out of the company's bank account in Sydney which had been sent to Sydney as part of the normal course of the company's trading business. Ms Eaton emphasised the trial judge had found with regard to the other 19 offences of which Mr James was convicted, that he did not himself personally benefit from the false statements or misappropriation of funds involved. She said there was no pre-meditation on Mr James' part. The company accountant had prepared the false statements and Mr James had merely signed these. Ms Eaton said she could not understand why Mr Peach, who was a full director of Kinetic Investments and a co-signatory, was not also charged in respect of these matters.
Ms Eaton said Mr James had never sought to hide his identity while he was in Australia in late 1988 and early 1989. He always used his own name and passport. When apprehended, he complied fully at all times both with the police and with the liquidator in relation to the winding-up the company. She said her son had only ever admitted to the one offence of misappropriation in Sydney. She noted that publicity in respect of the civil action brought against Mr James was not restricted while his criminal trial was occurring. She suggested that media exposure might well have affected the outcome of the trial. The 20 counts on which Mr James was convicted all arose out of the same chain of events. It is now 13 years since the offences took place.
With regard to Mr James' application for permanent residency, Ms Eaton said he applied for this when advised this was the only way in which he could obtain permission to be in Australia for two to three months. She accepts full responsibility for her son's attempt to enter the country on 31 May 1993, because he was acting on the advice that she had received from a lawyer that a short visit to Australia did not require a visa. Ms Eaton persuaded him to fly to Australia despite his reluctance. She noted her son was granted a visa in October 1998 and visited her in Australia for five days before returning to New Zealand. When Mr James applied for that visa, it was on exactly the same basis as his current application.
With regard to Direction No. 21 and the exercise of the Minister's discretion under s 501(1), Ms Eaton pointed out that the Respondent had wrongly linked Mr James with a totally separate criminal matter referred to by the trial judge in his sentencing remarks concerning a Mr Rose and a Mr McKelvie. The judge referred to the Rose and McKelvie cases in the course of his considering an appropriate sentence. Otherwise, there was no connection between those cases and that involving Mr James.

Ms Eaton submitted that her son has undergone a full rehabilitation. Whilst he was in prison, he undertook and passed a number of computer and business courses which have proved to be of benefit of him in running his and his wife's business. Mr James has been very remorseful over the collapse of Kinetic Investments. She noted that Mr James' friends have stuck by him and he has had the benefit of a very supportive wife following his remarriage. His and his wife's business have recently expanded to take on the lease of additional premises. All their earnings are being reinvested in the businesses. Ms Eaton pointed to a number of character references for her son given by solicitors and a prominent businessman, Mr Dowsett. Mr James has a position of trust in assisting in the management of the latter's business, even though Mr Dowsett is aware of Mr James' past history.
Ms Eaton submitted that there is no likelihood of Mr James being involved in any further criminal conduct. She suggested the Tribunal should take into account the circumstances in which the offences were committed which were that, in 1998, Mr James was working under extreme pressure as a result of which he was not sleeping properly, he was over-working and not thinking clearly. Ms Eaton submitted that there would be no deterrent effect from refusing a visa since Mr James is unknown in the Australian community. She said the expectations of the Australian community would not be affected, there being no reason to believe that Mr James would commit any further criminal misconduct. He has a clear record since 1989 and would only be here in Australia for short visits in order to spend a few days with her.

Ms Eaton said she feels that despite her son's rehabilitation, the offences are still being "thrown in his face". Moreover, the restrictions on him are also a sentence on her, and she would like her son to be able to visit Australia if she needs him, for example, in an emergency. She noted similarities with the case of ReMunroand Minister for Immigration and Multicultural Affairs [2000] AATA 908 in a case involving serious criminal conduct. On appeal, the visa applicant was granted multiple short-term visas notwithstanding that the chance of recidivism was much higher in that case. In conclusion, Ms Eaton said her son has an established life in Auckland. He has no wish to remain permanently in Australia, his only objective being to be able to visit her as needed. She noted that when Mr James came to Australia for a short visit in October 1998, he complied in all respects with Australia's immigration requirements.
APPLICATION OF THE LAW AND FINDINGS
The Tribunal finds Mr James was sentenced to imprisonment for a term of three years and nine months on 1 May 1990 in respect of 20 counts of theft and misappropriation in relation to the conduct of Kinetic Investment Services (New Zealand) Limited, a company of which Mr James was a director. Pursuant to the definition of "substantial criminal record" in s 501(7) of the Act, which includes a term of imprisonment of 12 months or more, and in accordance with s 501(6)(a), Mr James does not pass the "character test". The issue for the Tribunal to determine, therefore, is whether, notwithstanding that Mr James does not pass the character test, it should exercise the discretion in s 501(1) to not refuse the grant of a sub-class 676 (visitor) visa. In doing so, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 2.2 of Direction No.21 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in sub-paragraph (l), serious theft (including "white collar" crimes)". There is no dispute that Mr James committed serious theft in about October 1988 of which he was convicted and sentenced on 1 May 1990. The sentence of imprisonment totalling four years (three months detention pre-sentence and a further three years and nine months sentence on 1 May 1990) is an indication of the seriousness with which Mr James' conduct was regarded. However, paragraph 2.8 of Direction No. 21 states that, when exercising discretion, decision-makers must also take into account any relevant mitigating factors. The Tribunal notes the sentencing comments made by the trial judge on 1 May 1990 (T21). The judge found Mr James was "motivated more by ambition than greed" and that, excepting the count in which Mr James pleaded guilty, whilst there was "a strong undercurrent here of misuse of clients' money", nevertheless, Mr James did not personally derive benefit from this. The judge found Mr James had devoted himself entirely to the company and was working for the benefit of the client investors. However, Mr James lacked experience and did not exercise sufficient control over the duties arising from his position. While the judge was bound by the jury's verdict in finding Mr James personally guilty in respect of the administrative acts which led to the offences being committed, there was no attempt to conceal the company's activities.
The Tribunal notes the offences took place 13 years ago. The only other conviction that Mr James has is a fine for the possession of cannabis imposed on 17 November 1983. Mr James has not re-offended since 1988. In the Tribunal's view, having heard Mr James' evidence and that of his mother, the likelihood of Mr James re-offending is almost nil. All the evidence points to his complete rehabilitation. He expressed his remorse for what had occurred and he has re-established his life in such a way as to avoid being involved in the investment of money belonging to others. The Tribunal notes the references as to Mr James' good character from two solicitors, Mike Ireland and Keith Hetherington, and from a business associate, Sean Dickie (A1, S1).
With regard to general deterrence, the Tribunal notes Mr James has previously been refused entry into Australia on a number of occasions by reason of his criminal convictions, but was permitted to enter Australia on a visitor visa for a week in October 1998. Although a misappropriation of Kinetic Investments' funds took place in Sydney in October 1988, Mr James has otherwise at all times been compliant with Australia's laws. At no time while he was in Australia during 1988/1989 did he seek to conceal his identity. The Tribunal accepts that his attempted entry on 31 May 1993 was on the basis of advice which Ms Eaton had obtained from a solicitor/migration agent in Sydney and that she persuaded Mr James to seek entry to Australia relying on this advice, despite his reluctance to do so. In the Tribunal's view, there is no culpability on Mr James' part in respect of this incident.
The best interests of Mr James' children are not relevant in this case because they are resident in New Zealand and because his objective in obtaining a visa is purely that of visiting his mother on a short-term basis. Of the other considerations to which the Tribunal is directed by Direction No. 21, the Tribunal finds there would be hardship caused to Ms Eaton by a refusal of a visitor visa to Mr James, thereby precluding him from visiting his mother in Australia. The Tribunal recognises that while Ms Eaton is in good health, she will be able to travel to New Zealand to see her family. However, if her health should deteriorate or in the instance of an emergency occurring, since Mr James holds a power of attorney on her behalf and is her executor, his being excluded from Australia could cause significant difficulties for him in performing those roles.
The Tribunal finds Mr James has an established family and business life in New Zealand. He is happily married and living with his wife and her daughter by a previous relationship, and he has access to his daughter by his former marriage. His wife has established a successful health products business in which Mr James is intimately involved and he himself has established a computer consultancy business run from adjacent leased premises. The Tribunal finds Mr James has no desire to visit Australia on a longer term or permanent basis. His wish is purely to be able to visit his mother, who lives in Sydney. For this purpose, he needs a visitor visa because of his past criminal convictions. A weighing of the primary and other considerations leads the Tribunal to conclude that there are strong grounds for exercising the discretion not to refuse the grant of a visitor visa to Mr James.
The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Act should be exercised not to refuse the grant of a sub-class 676 (visitor) visa to Michael James.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   2 November 2001
Date of Decision   6 December 2001
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr L Leerdam, Sparke Helmore Solicitors