Ferris and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 587
•17 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1084
GENERAL ADMINISTRATIVE DIVISION
Re: STEPHEN JAMES FERRIS
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President J. Block
Date:17 July 2002
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion not to refuse the grant of a subclass 309 spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Marianne Elizabeth Mattingly-Ferris.
(sgd) J. Block
Deputy President
IMMIGRATION AND CITIZENSHIP – subclass 309 spouse visa – refusal on character grounds – making false statements in connections with entry to Australia – consideration of the character test – whether discretion should be exercised
Migration Act 1958 ss.499 501
Minister for Immigration and Multicultural Affairs v Chan (2001) FCA 1552
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586
REASONS FOR DECISION
17 July 2002 Deputy President J. Block
1(a) The decision under review is the refusal dated 23 July 2001 by a delegate of the Minister for Immigration and Multicultural Affairs (as he then was) ("the respondent") of a subclass 309 spouse visa to Marianne Elizabeth Mattingly-Ferris ("the visa applicant") who was sponsored by the applicant, who is her husband.
(b) Mr Ragu Appudurai, of counsel, instructed by Einsiedels, appeared for the applicant while Mr Michael Brereton of the Australian Government Solicitor's Office appeared for the respondent.
(c) The Tribunal had before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:
Exhibit A1 is an Order of the Superior Court of California, sitting in Orange County, California dated 19 November 2001; that Order noted that the visa applicant fulfilled all of the conditions of probation imposed in connection with an offence committed on 24 June 1992; the Order in its terms reads as follows
…
It appearing to the court from the records on file in this case, and from the foregoing petition, that the defendant herein is eligible for the relief requested:
It is hereby ordered that the plea, verdict, finding of guilty in the above-entitled action be set aside and vacated and a plea of not guilty be entered, and that the complaint be and is hereby dismissed pursuant to Section 1203.4/1203.4a of the Penal Code of California.
Dated 11/19/01 – [sgd] Judge of the Superior Court
Exhibit A2 is a letter of reference by the visa applicant's mother, Mary Ann Foster, dated 26 June 2002, sent by e-mail to Mervyn Ferris (father of the applicant) and forwarded by him to the Australian Department of Immigration; it reads as follows:
…
I believe that the most honest method of relating "who" a person is, is to relate the things that they have "done".
From the time my daughter, Marianne, was a little girl she had to be watched when playing with other children because she would frequently give her toys away. On a couple of occasions it was with children she had just met at the local park. When I would admonish her, the answer was always the same, "Oh Mom, I have so many toys and they really liked it."
This generosity of spirit has been one of the cornerstones of her being. No matter how hectic her life was while working and attending college, she always made a concerted effort to give. From organizing a trash recycling effort in her neighborhood, to regularly donating her greatly needed, negative type blood, to volunteering at animal rescue centers, her life has been one of purpose.
My niece, Diana, was staying at my home to receive treatment at the John Wayne Cancer Center for melanoma which had metastasized. At first everyone clamored to offer Support, then one by one the visits tapered off.
Except for Marianne, who would make the eighty mile, round trip drive every night after work, always finding a way to make Diana laugh. And when the horror of dying at thirty-four overwhelmed her, it was in Marianne's embrace that she received the strength to carry on. I would beg my daughter to take a break, telling her that I could handle things. Still, without fail, her car would pull into my driveway every night.
It was during these visits that Marianne encouraged Diana to realize her dream of founding The Melanoma Research Foundation. The non-profit organization has become Diana's legacy. I urge you to simply type my niece's name, Diana Ashby, on the address bar of a computer and press enter. The sites that come up will show the tremendous good that continues to come from this foundation which has continued to grow and flourish in the five years since Diana's passing. Truly, this organization came into existence, in part, due to Marianne's never-ending support of her cousin, Diana.
This past October, my father-in-law, Bernie, suffered a serious stroke and had to spend two months in a rehabilitation center. Even though Marianne didn't grow up with him, as he is her step-grandfather, her dedication to his recovery was touching. He made the comment to me that his own flesh and blood granddaughters visited a total of two times, yet Marianne was at the center every other day bringing him home cooked treats and encouraging him with his therapy.
One of Marianne's finest traits is her loyalty. I believe this has been demonstrated by the unwavering commitment she had demonstrated for her husband during the years of his incarceration. How easy it would have been to walk away. How dreadfully difficult it had to have been for a young woman to be alone during those years.
With modesty, I relate that Marianne comes from a good family. My husband is a medical company president and amongst us are members of accomplishment, including the husband of my above mentioned deceased niece, Jeffrey Ashby, who is a United States astronaut. When Jeff piloted the space shuttle, Challenger, he publically [sic] dedicated the launch to Diana
I am proud of my daughter and the strength of her commitment to her marriage. Do I want her to leave the United States for Australia? Of course not. I will miss her every day for the rest of my life. But as she has steadfastly insisted, her place is at her husband's side.
Stephen and Marianne have endured the pain of separation for so long. Please give them the opportunity to build a life together.
Thank you very much,
Mary Ann Foster
Exhibit A3 is a letter by Martin T. Jensen md, a medical practitioner of California, which reads as follows:
…
This patient suffers from Attention Deficite [sic] Disorder which causes her to have difficulty reading and comprehending. This disorder also causes inattention to detail, in this case filling out paperwork can be a difficult task. This patient was unmedicated at the time, which added to the already difficult situation. Please contact our office if you have any questions concerning this matter.
It is to be noted that exhibit A3 is reinforced by another certificate by the same doctor in much the same terms and which appears at T page 9.
Exhibit A4 is a bundle of photographs referable to the wedding between the applicant and the visa applicant.
Exhibit A5 is a letter dated 20 June 2002 by Daniell Thomassen of New Zealand; the second last paragraph of that letter reads as follows:
… Six months ago I was made aware that I must undergo chemotherapy treatments, which I have recently begun. From the moment Marianne learned of my illness she has been unwaveringly concerned and supportive. …
Exhibit R1 comprises photocopies of three landing cards referable to the visa applicant dated 25 May 2000, 10 October 2000 and 12 January 2001; each of the landing cards contains a question reading, "Do you have any criminal convictions?" In each case the No box was crossed by the visa applicant.
2(a) As is usually the case, the respondent has furnished a helpful statement of facts and contentions dated 7 January 2002 which includes an equally helpful chronology of relevant events; that statement of facts and contentions dated 7 January 2002 is set out in full as follows:
…
Decision Under Review1. Stephen James FERRIS ("the Review Applicant") has applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of a delegate of the Respondent dated 23 July 2001, to refuse the grant of a subclass 309 "Spouse" visa to Marianne MATTINGLY-FERRIS ("the Visa Applicant") on the grounds that she did not pass the Character Test within the meaning of subsection 501 of the Migration Act 1958 ("the Act").
Contentions of Fact
2. Please refer to the attached chronology.
Relevant Statutory Provisions, Principles And Policy Directives
The Act and Regulations3. Schedule 2 to the Migration Regulations 1994, describes the criteria relevant to the grant of a Subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the Visa Applicant satisfies public interest criteria 4001; that is, the applicant must satisfy the criteria set out in clause 4001 of Schedule 4 to the Regulations. Clause 4001 provides:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass 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."
4. However, it is noted that s. 501 of the Migration Act 1958 ("the Act") may be applied in any circumstances to any visa subclass where issues relating to character or conduct arise, regardless of whether or not the Public Interest Criteria in Schedule 4 is prescribed for that visa class. This is because s. 501 provides a separate statutory power to other powers to cancel or refuse a visa: paragraph 6.2.1 of Migration Series Instructions 254.
5. Section 501 of the Act provides:
(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.
[sic](6) For the purposes of this section, a person does not pass the character test if:
[sic](b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)….
(ii)the person's past and present general conduct;
the person is not of good character;
6. Section 500(1)(b) of the Act provides the Tribunal with jurisdiction to review "... decisions of a delegate of the Minister under section 501...".
Direction 21
7. A Direction was given by the Minister under s. 499 of the Act on 23 August 2001 and is entitled "Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 – Direction No.21" ("Direction 21"). Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238.
8. The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act). The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test…
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
9. Paragraph 1.5 of the Direction states that under paragraph 501(6)(b), the meaning of "association" for the purposes of the Character Test encompasses a very wide range of relationships, including having an "alliance" or a "link" or "connection" with a person, a group or an organised body that is involved with criminal activities. "Association" does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision maker may have regard to:
(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b)the duration of the association; and
(c)the nature of the association.
10. Paragraph 1.7 of the Direction states that under paragraph 501(6)(c), decision makers are required to make a finding that a non citizen is "not of good character" on account of their past and present criminal or general conduct, and thereby does not pass the Character Test. Decision makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
11. Paragraph 1.9 of the Direction states that, in considering the question of "general conduct", decision makers should consider matters including:
[sic]
(b)whether the non citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
12. Migration Series Instructions No.254 ("the character requirement: visa refusal and cancellation under s. 501 - MSI 254") which was issued on 20 September 1999 also provides guidance in making decisions to refuse or cancel a visa under s. 501 of the Act. The MSI notes that decisions concerned with the refusal of a visa under s. 501(6) are to be dealt with in a two staged process (at paragraph 4.1.2 of MSI 254):
first: the non-citizen does not satisfy the decision-maker that he or she passes the Character Test; and
second: the decision-maker considers whether to exercise his or her discretion.
13. The expression "if the person does not satisfy the Minister" has the effect of reversing the evidentiary obligation so that it is for the applicant to satisfy the Tribunal that he passes the Character Test: paragraph 3.1.1 of MSI 254.
14. Paragraph 4.6.2 of the MSI states that, when reaching a conclusion as to whether a non citizen does not pass the Character Test on paragraph 501(6)(b) grounds, the delegate must reasonably suspect that a person, group or organisation is or has been involved in criminal conduct. This is the threshold test. The term "reasonably suspects" requires a decision maker to honestly form a view which is reasonable in the circumstances that the facts or information known to the decision maker, if true, may mean that the Character Test is not satisfied. The test of "reasonably suspects" is a lesser test than the balance of probability test (or what is usually referred to as "more likely than not" test). A suspicion is something less than actual belief (Table 3.1 to MSI).
15. Paragraph 4.6.4 of the MSI states that once the threshold test is satisfied, the Delegate considers whether the non-citizen has or has had an association. Paragraph 4.6.5 states that while it is not intended that persons having an innocent association with a person, group or organisation will not pass the Character Test, a person having an association by way of family ties with a person, group or organisation of the type specified in 501(6)(b), will not pass the Character Test.
Contentions
Association16. The Review Applicant is currently serving a sentence of three years in Japan, on charges of shoplifting and breach of the psychotropic drug control laws (in this case, possession of ecstasy tablets). The Respondent contends that the Review Applicant, therefore, is a person who has been involved in criminal conduct.
17. In Minister for Immigration and Multicultural Affairs v Chan [2001] FCA 1552 (13 September 2001 per Emmett J), the Federal Court considered the question of association and whether there needs to be a nexus between the Visa Applicant and the criminal conduct of the person whom they are associated with. His Honour stated:
…. I do not consider that the language of s 501(6)(b) justifies such a limitation. There is nothing in the paragraph itself to limit the association in that way. Rather, the scheme of the provision is to confer upon the Minister a discretion under s 501(2) to cancel a visa if certain prerequisites are satisfied. The first prerequisite is that the Minister reasonably suspects that the person does not pass the character test and the second is that the person does not satisfy the Minister that the person passes the character test.
Even if those prerequisites are satisfied, the words "the Minister may cancel a visa" (emphasis added) indicate that there is still a discretion to be exercised by the Minister or his delegate as to whether or not to cancel a visa. There may be good reasons why, in a particular case, notwithstanding that the prerequisites are satisfied, the Minister may in the exercise of his discretion decide not to cancel a visa. For example, it may be that there is no nexus between the criminal conduct of the person with whom the visa holder had an association and the visa holder, as was found to be the case in relation to [the Applicant in this case].
It may be a relevant consideration that the visa holder had no knowledge of the criminal conduct of the other person. It may be a relevant consideration that the visa holder did not knowingly take a benefit from the proceeds of the associate's criminal conduct. Those matters, however, are matters for consideration upon the exercise of the discretion if the discretion arises. They are not matters to be taken into account in determining whether or not the discretion arises, namely, whether or not the person has had an association with someone else whom the Minister reasonably suspects has been involved in criminal conduct.
It may be significant that s 501 was relevantly amended with effect from June 1999. Prior to 1 June, 1999, the Minister had power to refuse to grant a visa or to cancel a visa, "if ... the Minister ... is satisfied that the person is not of good character because of the person's association with another person ... who the Minister has reasonable grounds to believe has been or is involved in criminal conduct". In that form, the Minister was required to make a judgment as to whether or not the visa holder was not of good character because of the association with the person involved in criminal conduct.
The effect of the amendment was to remove any question of whether the Minister is satisfied as to the good character of a visa holder. The provisions in their present form merely require that the Minister be satisfied that the person does not pass the character test. The character test requires a more mechanical exercise, namely, whether or not for present purposes, the person has satisfies [sic] any of the four criteria set out in s 501(6)(a)-(d).
The change in the legislation confirms the construction that I consider is the proper construction of the words contained in the paragraph.
18. The Visa Applicant is married to the Review Applicant. The Respondent contends, in accordance with paragraph 4.6.5 of the MSI, that the Visa Applicant has an association by way of family ties with a person involved in criminal conduct. The Respondent further contends, in accordance with the judgment of Emmett J above, that the Visa Applicant's association is sufficient to show that she does not pass the Character Test. Any issues arising from this association are relevant only to the exercise of the discretion, which will be dealt with shortly.
Past and Present General Conduct
Failure to be Truthful in Dealing with the Department19. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, the following description was given of the term "good character" by Lee J:
Unless the terms of the Act and Regulations require some other meaning be applied, the words good character should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis (1947) 75 CLR 409 at 416, per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
20. In Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR187, the Full Court, at 195 stated:
We do not think there is any warrant for extracting from the broad word 'general' a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct as we understand the term, displayed but once or twice, may lay character bare very tellingly.
21. In Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon stated:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia ... . To lie consistently, ... is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or character.
22. This interpretation has been accepted in a number of subsequent cases: Re Renata v Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157 at 159; Re Prasad v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781-783; Re Baker v Department of Immigration and Ethnic Affairs (1995) 37 ALD 744 at 751; Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).
23. A person of enduring moral qualities, to adopt the definition in Irving, despite being fearful of the consequences, would have felt compelled to tell the truth and act honestly in her dealings with immigration officials.
24. The Visa Applicant was convicted of shoplifting in the United States in 1992. The Visa Applicant did not disclose this to the Department in her Spouse visa application. The Respondent contends that the Visa Applicant has therefore made a false or misleading statement in connection with a visa application.
25. The Visa Applicant did not immediately advise the Department of the arrest of the Review Applicant. When questioned by the Department she initially provided evasive responses as to the Review Applicant being "un-contactable". It was not until she was questioned directly that she advised the Department of the arrest, conviction and sentence. The Respondent contends that, by her evasive answers and delay, the Visa Applicant was making misleading statements about the situation of the Review Applicant, and therefore in connection with the Visa Applicant's application.
26. The Visa Applicant arrived in Australia on Tourist visas on 25 May 2000, 10 October 2000 and 12 January 2001. On her incoming passenger cards she indicated that she had no previous criminal convictions. On 10 April 2001 the Visa Applicant applied for a Tourist visa and again indicated she had no previous criminal convictions. As the previous conviction had already been brought to her attention in August 2000, the Respondent contends that the Visa Applicant, in October 2000 and in 2001, must have been aware that she was knowingly making a false or misleading statement on her passenger cards as well as in connection with a visa application.
27. The Respondent contends, therefore, that the Visa Applicant's past general conduct displays a number separate instances of making false or misleading statements to the Department. As such, the Tribunal should find she does not pass the Character Test having regard to her past general conduct.
The Application of the Discretion
Primary Considerations28. If the Tribunal is satisfied that the applicant does not pass the Character Test, the Tribunal must consider whether or not to refuse to grant the visa.
29. In the exercise of its discretion, the Tribunal is required to weigh up a number of countervailing primary and relevant considerations. Pursuant to the Direction, there are three primary considerations being:
(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
(a) Protection of the Australian Community
(i) Seriousness and nature of the conduct30. The Respondent contends that the Review Applicant's offences must be viewed as very serious, as they involve possession of illegal drugs. The severity of the sentence is also indicative of the seriousness with which the offences were viewed by the Japanese authorities. The Visa Applicant is therefore associated with someone who has been involved in serious criminal activity.
31. In respect of the Visa Applicant's non disclosure of the Review Applicant's arrest, the Respondent contends that the Visa Applicant would have been concerned that the arrest and subsequent conviction may have affected her application. It is contended, therefore, that this was a deliberate attempt at evasion by the Visa Applicant in order to prevent the Department becoming aware of the Review Applicant's circumstances.
32. The Visa Applicant also had a prior conviction herself which she did not disclose on her incoming passenger cards or Spouse visa application. In mitigation, the Visa Applicant submitted that the conviction was old and had, she assumed, been expunged from her record. However, even after being informed that this was not the case, the Visa Applicant subsequently made false declarations on passenger cards and applied for a Tourist visa, again not disclosing her previous conviction. Further, in her Application for Migration to Australia by a Partner (at T6 page 83), the Visa Applicant has ticked "No" to the question asking, in so far as here relevant,
"Have you, or any other person included in this application, ever:
been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
33. The Respondent contends that this is indicative of deliberate attempts to mislead the Department in order to obtain entry into Australia and the grant of a visa.
(ii) likelihood that the conduct may be repeated (including risk of recidivism)
34. The Respondent contends that the Visa Applicant has shown a course of repeated conduct by making false statements to the Department on a number of occasions. Further, the Visa Applicant has been evasive and withheld information requested by the Department. This is indicative of the Visa Applicant's capacity to behave in a fraudulent or dishonest fashion in order to secure a benefit – ie visas and entry into Australia. As the conduct is ongoing, the Respondent contends that this shows the Visa Applicant is a person with a high risk of recidivism should she be placed in similar circumstances.
(iii) general deterrence
35. The Respondent submits that the refusal of the Visa Applicant's application for a Spouse visa would act as a message to non-citizens who have a history of making false and misleading statements to the Department that they will not be allowed to enter Australia. Conversely, it is respectfully submitted, the grant of a visa in this instance would effectively condone dishonest behaviour in the eyes of non-citizens, as it would be tantamount to rewarding the Visa Applicant for her past evasive and misleading conduct.
(b) Expectations of the Australian community
36. The Respondent contends that the Australian community expects non-citizens to obey Australian laws, particularly the laws governing entry to and remaining in Australia. The Department relies on the honesty of visa applicants and the information that they provide. The Australian community relies on the Department to ensure that persons whom the Department suspects are not of good character are detected. This leads the community to expect that only those persons who were likely to abide by Australia's laws would be allowed to enter Australia. Further, the community would also expect that persons who had a history of dishonesty in their dealings with the Department, would not be permitted to enter or remain in Australia.
(c) The best interests of the children
37. There are no children to be considered in this application.
Countervailing Relevant Considerations
38. The Direction provides that 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.
Hardship
39. There may be an argument of hardship on the part of the Review Applicant. The Respondent contends, however, that this situation has been brought about by the Review Applicant's own criminal behaviour. He has committed an offence which would most likely be viewed with equal seriousness here in Australia, and which the Visa Applicant attempted to conceal from the Department. The Respondent contends that these factors weigh against the exercise of the discretion in this case.
40. The Respondent contends that there are no other countervailing relevant considerations which may impact on the Tribunal's decision whether or not to exercise its discretion.
Conclusion
41. The Respondent contends that the Tribunal should affirm the decision under review.
Chronology
Date Occurrence Page
2/3/1967 Visa Applicant born in United States of America. 77
19/11/1968 Review Applicant born in Australia.
24/6/1992 VA convicted of petty theft in USA. Fined and placed on 36 months probation. 110-11
29/7/1998 VA and RA marry in Japan. 82
16/12/1999 VA lodges application for Spouse Visa in Japan. VA states "no" to the question asking if she has "been convicted of a crime or offence in any country (including any conviction which is now removed from official records)." 74-90
23/12/1999 RA arrested in Japan for shoplifting and drug offences. Imprisoned pending trial. 116-118
14/8/2000 RA sentenced to three year's imprisonment in Japan for violation of Psychotropic Control Law (possession of Ecstasy tablets). 125
20/9/2000 VA informs the Department of Immigration and Multicultural Affairs that RA has been imprisoned. 116-118
10/4/2001 VA applies for a Tourist Visa and again declares she has never been convicted of a crime or any offence in any country and has not been charged with any offence that is awaiting legal action. 126-128
23/7/2001 Delegate decision to refuse to grant the visa. Communicated to Visa Applicant via e-mail. 24-25
22/8/2001 RA lodges Application to AAT for Review of Decision. 3-23
(b) The applicant has also furnished a helpful statement of facts and contentions dated 25 June 2002, which reads as follows:
A.Contentions of fact
1.The Review Applicant (Stephen) does not dispute the chronology referred to in paragraph 2 of the Respondent's Statement of Facts and Contentions ("the Respondent's Contentions") but will refer to the content of the documents referred to therein both in these contentions and at the hearing in support of the application.
2.In particular, evidence will be called from the Visa Applicant (Marianne) concerning the circumstances surrounding her answers to the question concerning her prior conviction. Marianne and Stephen will also be called to give evidence, generally in accordance with the content of statements/letters already filed with the tribunal in relation to matters pertinent to the exercise of discretion by the tribunal [T documents: pp 5-6, 9, 10-13, 15-17, 106-108, 110-111, 115-118, 119-120 and Letter from Stephen to the tribunal - 14/1/02].
3.Stephen's parents, Mervyn Ferris and Norma Hall, will also be called to give evidence in support of Stephen's application for review [pp 18-20].
4.The following chronology completes the factual matrix (in addition to that which is contained in the Respondent's Contentions):
(i)24 June 1992 Marianne received a suspended sentence (good behaviour bond) and fine of approximately $800.00 for shoplifting (misdemeanour) - full circumstances are outlined at pp 110-111. No further transgressions and that sentence has now been expunged;
(ii)September 1996 Stephen travelled to Japan to study at university and be the representative of the Northern Melbourne Institute of TAFE;
(iii)July 1999 Stephen's sister (Kathryn) died suddenly having lapsed into a diabetes-related coma. Stephen returned to Australia for one week to attend the funeral. Stephen did not cope well with the sudden loss of Kathryn and suffered deep depression [pp 5, 11-12 and Stephen's letter of 14/1/02];
(iv)23 December 1999 Stephen held in custody. Not released until 21 May 2002. Marianne was not implicated in any way in relation to Stephen's charges [pp15-17];
(v)15 February 2000 First trial (theft);
(vi)22 March 2000 Second trial (theft);
(vii)29 march [sic] 2000 Stephen charged with narcotics offences;
(viii)25 April 2000 Third trial (all charges);
(ix)22 May 2000 Marianne left Japan for Australia. She has not seen Stephen since that date but continued contact, primarily by regular correspondence;
(x)23 & 29 May 2000 Fourth trial (all charges);
(xi)22 June 2000 Stephen sentenced to 3 years imprisonment and a fine of Yen 500,000. Only 100 days allowed for 182 days in custody. Appeal contemplated.
(xii)14 August 2000 Stephen was transferred to Kobe prison following abandonment of appeal;
(xiii)19 August 2000 Marianne departed Australia. Between 10 October 2000 and 10 July 2001, Marianne made two further visits to Australia for a total stay of 259 days. Between May and December, Marianne lived with Mervyn Ferris, and was at all times supported financially by Mr Ferris;
(xiv)13 August 2001 Marianne petitioned for her misdemeanour conviction to be quashed [p 8];
(xv)2 November 2001 Order made by a Judge of the Superior Court of California, County of Orange that "...the plea, verdict, finding of guilty...be set aside and vacated and a plea of not guilty be entered, and that the complaint be and is hereby dismissed...". That order also provides very limited circumstances in which the expunged prior conviction must still be disclosed;
(xvi)25 May 2002 Stephen returned to Australia after release from Kobe prison.
5.Throughout the period during which Stephen was held in custody and to this day, notwithstanding the immensely difficult circumstances, Stephen and Marianne have not wavered in their commitment to each other. Marianne's unstinting support was critical in assisting Stephen to cope with the extremely difficult conditions at Kobe prison. In this regard, they have had and continue to have the support of their families and, in particular, that of Stephen's parents in Melbourne.
6.Stephen cannot, of course, apply successfully to enter the USA. He cannot reside anywhere but in Australia. Any opportunity for rehabilitation and a new lease of life can only be availed of in Australia. The refusal of Marianne's visa application, based on s 501(6) of the Migration Act 1958 ("the Act"), prevents Marianne from assuming in person her role as Stephen's partner so that she can continue to facilitate Stephen's rehabilitation.
Contentions of law
7.The Respondent's contentions of law at paragraphs 3 to 18 are not disputed.
8.The tribunal's task is a two-fold one - first a decision as to whether a person is "not of good character" and, if so, whether the discretion not to refuse a visa should be exercised in the person's favour. That assessment is to be made upon all of the circumstances of the person's case, including consideration of criminal and general conduct. Such an assessment is to be made upon the material available at the time the decision is to be made. The Full Federal Court has clarified the scope of this task in Irving v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 84 (at 87-88: per Davies J and at 94-95: per Carr J) and in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 453 (at 467 - 471).
Section 501(6)(b)
9.It is conceded that Stephen's conviction and imprisonment for more than 12 months triggers the provisions of s 501(6)(b) of the Act.
10.However, as Emmett J observed in MIMA v Chan [2001] FCA 1552 (13 September 2001):
7....The first prerequisite is that the Minister reasonably suspects that the person does not pass the character test and the second is that the person does not satisfy the Minister that the person passes the character test.
8 Even if those prerequisites are satisfied, the words "the Minister may cancel a visa" (emphasis added) indicate that there is still a discretion to be exercised by the Minister or his delegate as to whether or not to cancel a visa. There may be good reasons why, in a particular case, notwithstanding that the prerequisites are satisfied, the Minister may in the exercise of his discretion decide not to cancel a visa. For example, it may be that there is no nexus between the criminal conduct of the person with whom the visa holder had an association and the visa holder, as was found to be the case in relation to Mrs Chan.
9 It may be a relevant consideration that the visa holder had no knowledge of the criminal conduct of the other person. It may be a relevant consideration that the visa holder did not knowingly take a benefit from the proceeds of the associate's criminal conduct. Those matters, however, are matters for consideration upon the exercise of the discretion if the discretion arises. They are not matters to be taken into account in determining whether or not the discretion arises, namely, whether or not the person has had an association with someone else whom the Minister reasonably suspects has been involved in criminal conduct [emphasis added].
11.It is contended that the considerations identified by Emmett J (and underlined) apply with equal force to Marianne's situation. As Emmett J observed, the mechanical terms of s 501(6)(b) leave no room to find otherwise than that Marianne is 'damned by marriage'. In circumstances such as this, however, where a broad-brush filter traps those otherwise unintended to be so trapped; the Minister's over-riding discretion provides the vehicle by which such an unintended consequence may be reversed.
12.It is just such a situation which the tribunal is asked to resolve by resorting to the over-riding discretion to decide that Marianne should not be refused the grant of the visa.
Section 501(6)(c)
13.With respect to the alternative ground relied on by the Minister [s 501(6)(c)], it is contended that the matters relied upon by the Minister, namely:
. the failure to advise early of Stephen's detention; and
. the recording of a "no" answer to the question concerning prior convictions;
are not such as to amount to a finding against Marianne under that section.
14.In Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (1999) at [8], the Full Court said:
Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of "good character" in s 501is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is `not of good character' within s 501 (2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry [emphasis added].
15.As extracted in paragraphs 19 and 20 of the Respondent Contentions, Irving and Baker are relevant to the task before the tribunal. In Baker, the Full Court observed relevantly that:
...We think the key to the understanding of sub-s 2(a) is to be found in its object - satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the Minister is required, by the phrase "having regard to", to look at the conduct of the person the subject of the enquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of "general conduct". So the words "having regard to" and the disjunctive "or" must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation [at p469].
[Section 501(6)(c) is presently in terms which recognise, and give effect to, the Full Court's view.]
Of course, all of the conduct under scrutiny for the purposes of s 501(2)(a) is to be examined in order to see what light it may throw on the question whether the decision-maker "is satisfied that the person is not of good character". Even criminal conduct may not lead to that conclusion, perhaps because of the nature of the crime (certainly some absolute offences need involve no moral obloquy), or perhaps because of the lapse of time since the offence or the existence of positive evidence of reformation. The words "good character" in the section should, as Lee J pointed out in Irving (at 94), be understood as "a reference to the enduring moral qualities of a person". Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character [pp 470-471 - emphasis added].
16.It is contended that, in the circumstances outlined in the documents and in the oral evidence before the tribunal, the failure to advise of Stephen's detention is not of a character that would attract a negative assessment under s 501(6)(c). Until August 2000, there was an appeal pending and with it, the hope of acquittal. Marianne has consistently maintained that she was advised by Mr Kellett of the Osaka Consulate that there was no need to divulge Stephen's then status [pp35 and 116-117]. Marianne did not lie to the mission. The T-documents disclose that, when asked for the information, Marianne was forthcoming with the news of Stephen's detention.
17.Marianne's non-disclosure of her prior conviction is, it is contended, likewise not sufficient to attract a negative assessment when the issue is assessed in the manner endorsed by the Full Court in Baker. It is contended that the tribunal can accept with confidence that Marianne genuinely believed that the prior conviction had been expunged by the effluxion of time. In addition, the effect of ADD [p9] on her powers of concentration must be considered in determining whether there was any relevant deliberate material non-disclosure.
18.The prior conviction itself was not of a kind with which a person, otherwise of the highest "enduring moral qualities", should be fixed with so as to stymie her progression in life. The actions of the Superior Court of California in ordering the vacation of the sentencing order highlights the low level of seriousness attached to the offence with which Marianne was charged some 10 years ago. In Victoria (as in many other Australian states) a "good behaviour bond" would not have a conviction attached to it and would simply be expunged without any further court action once the probation period expires without further contravention. Marianne should have been more careful but that, ADD-affected, lack of attention is not sufficient to warrant the condemnation of Marianne and Stephen to live their lives apart.
19.Marianne's conduct since the instances relied upon by the Minister and since the prior conviction has been, and continues to be, exemplary. Section 501(6)(c) directs that regard be had to past and present conduct. Her role in the support of Stephen through difficult times and her continuing support and commitment is central to any consideration of her character.
20.It is respectfully contended that the tribunal should not find that Marianne is not of good character pursuant to s 501(6)(c) of the Act.
Discretion
21.Even if the tribunal were not to accede to the submissions concerning s 501(6)(c), the tribunal should nevertheless exercise its discretion to not refuse to grant the visa.
22.The issues identified as considerations in the exercise of the discretion in the Respondent's Contentions (at paragraphs 29-39) are, in the circumstances, such that a visa should not be refused to Marianne.
Protection of the Australian community
23.While Stephen's offences in Japan are serious, he is an Australian citizen. He is entitled (as he has) to return to Australia and commence this phase of his rehabilitation with as much support as he can secure. Crucial to this is the support of his family. That support from Mervyn and Norma has been made clear to the tribunal. The support from Marianne is, likewise, patently obvious but, as things stand, she is prevented from lifting the level of that support to that which would be possible were she to be present in Australia.
24.As made clear in the evidence before the tribunal, there was no deliberate non-disclosure of Stephen's detention as contended in paragraph 31 of the Respondent's Contentions. Likewise, there was no deliberate attempt to mislead as contended in paragraphs 32 and 33 of the Respondent's Contentions.
25.For the reasons already identified in these contentions (and in oral submissions and evidence), there is no prospect of relevant "recidivism" as contended for in paragraph 34 of the Respondent's Contentions. In all the circumstances, there is no occasion for any general deterrence in this case as contended in paragraph 35 of the Respondent's Contentions.
26.While the general propositions in paragraph 36 of the Respondent's Contentions are valid (up to a point) it is respectfully contended that, in the circumstances of this case, the expectations of the Australian community will not be disappointed by allowing Marianne to enter Australia to live with her husband. The expectations of the community that Marianne should [sic] allowed to provide meaningful support in person would indeed be disappointed if Marianne were barred from entering Australia.
Hardship
27.Stephen has already suffered hardship in police custody and in Kobe prison. He has been separated from Marianne, admittedly through his own error but caused by an inability to cope with the sudden loss of his sister. He has paid the price ordered by the Japanese court and exacted by the prison system; he has 'done the time'. In Australia, he is likely (given the mitigating circumstances) to have received a non-custodial sentence. He had the misfortune of having to cope with a deep loss away from his homeland. He is patently remorseful.
28.The circumstances of Stephen's offences should not now be used to deny him the opportunity of a complete rehabilitation (with the assistance of his wife) to the benefit of them both, his parents and the Australian community as a whole. To prevent Marianne from re-joining Stephen will be tantamount to the imposition of a penalty under migration law which the criminal law of Japan did not contemplate. Indeed, such a perverse result is simply not contemplated by the criminal law in Australia.
29.Stephen cannot go to the USA. There is no other viable option where Marianne and Stephen can live in the same place. The hardship to Stephen (and Marianne) by their continued separation serves no valid purpose.
Conclusion
30.It is respectfully submitted that the tribunal should set-aside the decision of the Minister.
(c) Each of the applicant's mother, Norma Hall, and his father, Mervyn Ferris, were sworn as witnesses; each of them simply confirmed the truth of character references furnished by them concerning the visa applicant and which appear at T page 18 and T page 19 respectively; in neither case was the witness cross-examined and those statements are accepted; T page 18 reads:
…
I, Norma Hall, the Mother-in-law of Marianne Ferris have been asked to provide a reference to help her in her quest to gain a Visa to enable her to remain and work in Australia whilst awaiting the return next year of my son and her husband Stephen James Ferris.
I first met Marianne when I, with Stephen's father; brother and sister flew to Japan to share with them the happy occasion of their marriage. It was quite evident to us of the deep love, devotion and affection they had for each other. The week we spent with them enabled us the time to get to know and love Marianne.
Marianne arrived in Australia last year hoping to be granted her Spousal Visa which would enable her to work here and save for Stephen's return next year. At first she lived with, and was supported by Stephen's father. Due to the sad loss of her Grandmother she received an amount of money which enabled her to rent a flat of her own. But not being able to work, money was becoming a problem and Stephen in a letter to his Father asked for some money which had been left to him by his late sister Kate to be given to Marianne to assist her.
A Visa is urgently needed to help Marianne be able to find work, to save and have something for both of them to make a fresh start upon Stephen's return. If it's an option my husband and myself are quite prepared to sponsor her, as is Stephen's father.
Since Marianne's arrival in Australia she has become a valued member of our small family, and in a way has made the death of our daughter/sister/granddaughter easier to bare. Stephen and Marianne are completely committed to each other and want to build a life for themselves in Australia as part of our small, but close and loving family.
Enough time has already been wasted in pursuit of her gaining a Visa and I hope for Stephen and Marianne's sake something can be done to help her, even on compassionate grounds. We need both of them here with us to complete our family.
NORMA HALL
…
And T page 19 reads:
…
MARIANNE MARRIED MY ELDEST SON, STEPHEN JAMES FERRIS, IN A WEDDING CEREMONY IN JAPAN ON 12 JU1Y, 1998. I AND STEPHEN'S MOTHER, YOUNGER BROTHER AND SISTER, TRAVELLED TO JAPAN AND WITNESSED THE CEREMONY.
IN JULY l999, STEPHEN'S SISTER SUDDENLY DIED DUE TO A DIABETES RELATED ILLNESS; STEPHEN'S BEHAVIOUR IN JAPAN THEN BECAME UNCHARACTERISTIC, CULMINATING IN HIM BEING ARPESTED ON 23 DECEMBER,l999, AND SUBSEQUENTLY CHARGED WITH SHOPLIFTING AND VIOLATIONS OF SOME OF JAPAN'S DRUG RELATED LAWS. WHILE STEPHEN WAS IN CUSTODY AND GOING THROUGH THE TRIAL HEARINGS, WRITTEN COMMUNICATIONS WITH STEPHEN AND OTHERS (DEPARTMENT OF FOREIGN AFFAIRS) INDICATED THAT STEPHEN'S TOTALLY UNCHARACTERISTIC BEHAVIOUR AND UNLAWFUL ACTIVITIES DID NOT INVOLVE HIS WIFE MARIANNE IN ANY WAY.
FOLLOWING EXTENSIVE COMMUNICATIONS BETWEEN STEPHEN, MARIANNE, AND STEPHEN'S FAMILY, MARIANNE CHOSE TO COME TO AUSTRALIA TO LIVE WITH THE FAMILY OF HER HUSBAND; ON 25 MAY, 2000 SHE ARRIVED TO STAY WITH ME IN MY HOME IN MELBOURNE, VICTORIA, AUSTRALIA.
SINCE THAT TIME MARIANNE HAS BEEN SUPPORTED BY ME, BENEFICIARY MONEY FOLLOWING THE SAD PASSING OF A CLOSE RELATIVE IN AMERICA, AND VIA MONIES HELD IN TRUST FOR STEPHEN PENDING HIS RETURN FROM JAPAN-STEPHEN HAVING REQUESTED IN WRITING THE PROVISION OF THE MONEY TO MARIANNE SO AS TO ASSIST IN HER SUPPORT. HER FINANCES ARE SUCH THAT SHE WAS ABLE TO MOVE INTO INDEPENDENT ACCOMMODATION.
MARIANNE HAS FITTED INTO A STEADY FAMILY LIFE HERE IN AUSTRALIA AND IS NOW A LOVING AND MUCH LOVED MEMBER OF OUR FAMILY; SHE IS A NORMAL LAW ABIDING MEMBER OF THE COMMUNITY
MERVYN G FERRIS (FATHER OF STEPEEN JAMES FERRIS)
3(a) The visa applicant was born on 2 March 1967. Her parents were divorced when she was one year old. After graduating from Santa Monica Junior College in 1994, the visa applicant enrolled at the University of California in 1995 for a degree course involving Psychology as a major subject and Sociology as a minor subject. She is currently, so she informed the Tribunal, "two semesters" away from completing her degree. Her studies were regular for a year but thereafter became sporadic and involved periods away from college. The visa applicant has engaged in modelling activities and has also worked in her mother's real estate business in California.
(b) In November 1997 the visa applicant went to Japan on a trip and, for this purpose, deferred her studies. She utilised, for this purpose, funds saved from her modelling and her real estate activities. After a month in Tokyo, she went to Osaka and where she met the applicant. That meeting took place on 26 December 1997. As she put it, "they hit it off" and thereafter were together as much as possible.
(c) The visa applicant was scheduled to return to the United States some three months later. She accepted the applicant's proposal of marriage shortly before her return. After returning to the United States to inform her family of the marriage proposal and to settle her affairs, she returned to Osaka in time to celebrate her birthday on 2 March 1998 with the applicant.
(d) The couple were married in July 1998. There is in this context some discrepancy between her evidence and his; she believes that a ceremony in a Buddhist temple was succeeded by registration of the marriage with the Australian and United States Embassies. The applicant said that registration took place first and this seems more likely. The ceremony was attended by family members as the photographs exhibited to me attest. There is no dispute about the fact that they are legally married and that the marriage is perfectly genuine.
(e) The applicant received news in July 1999 of the death of his sister Kathryn (aged 24) in Australia. Kathryn was a diabetic but the disease was under control and so her death was entirely unexpected, and to the applicant, catastrophic.
(f) It was at this time that the applicant, who had been devoted to his sister and who had previously been outgoing and loving and tender (using her words), became withdrawn and, again as she put it, closed off emotionally. He was angry and explosive. The applicant had gone back to Melbourne for his sister's funeral; the visa applicant could not accompany him because of her commitments in Osaka where she was working for a real estate company providing accommodation in Osaka for foreigners.
(g) I turn now to deal with the visa applicant's conviction in June 1992. The applicant was at Disneyland in Anaheim with a friend named Elizabeth McConnell. Her friend shoplifted an article at one of the stores in Disneyland and in consequence of which both she and the visa applicant were arrested. A public defence lawyer was assigned to assist them both. He advised them to plead guilty on the basis that such a plea would result in a fine and a probationary period only. The visa applicant telephoned two lawyer friends to check the validity of this advice. She was told that, to obtain legal representation of her own, would cost her some thousands of dollars and that naturally there could be no guarantee of an acquittal. In the result, she pleaded guilty and was fined $800.00. In addition she was put on probation for a period of three years. The probation was informal in the sense that it did not require her to report to any authority. That conviction was, as will be seen, to have far-reaching consequences. It is referred to in these Reasons, in order to distinguish it from the convictions referable to the applicant as "the visa applicant conviction".
(h) On 24 December 1999, the visa applicant was told that the applicant was being held in custody. The Australian Consulate in Osaka was closed at that time for the Christmas holidays. The visa applicant received assistance from Alfred Weinzierl, who is an interpreter/translator for the Osaka Bar Association and who helps foreign nationals in trouble. A letter by him dated 11 May 2001 appears at T page 15 and T page 16, and reads as follows:
…
My name is Alfred Weinzierl. I am working in Japan as a translator/interpreter for Osaka Bar Association Lawyers and have helped foreign nationals for the last 6 years. Presently I work with Mr. Takashi Ikeda, a well known human rights lawyer from Osaka, to improve the plight of non-Japanese detainees and foreigners who need legal assistance. In my capacity as executive director of A-UN and as chief interpreter for the CMIA (both organizations aid foreign nationals living in Japan) I met Steve and Marianne and am therefore very familiar with their case.
It has now come to my attention that Marianne might have difficulties in getting a visa due to her being associated to a "criminal" (her husband). Please allow me to clarify a few things.
1. I am absolutely convinced that Marianne had nothing to do with the crime comitted [sic].
2. I myself went to the Osaka Prefectural Police to get a so called "Proof of no Criminal Record" document. The Japanese police are not known to issue such documents to suspects or criminals.
3. To my knowledge Marianne visited her husband EVERY DAY. I accompanied her and acted as a go-between for the police and her.
4. There is nothing anybody could have done to outclass her in love, support and devotion to her husband.
Steve has been punished enough to be sent to a Japanese prison. they [sic] are notoriously inadequate and human rights are taking a very low priority here. I therefore implore you not to punish Steve a second time by refusing his wife the permission to stay in your country.
Australia is a country with the highest democratic traditions and I am confident that everything will turn out for the best
I realize of course that it is easy to write an email so in order to find out a bit more about me and whether I am who I say I am you need only have a look at the Kansai Time Out magazine from Nov. 2000 (a copy of the article can be forwarded to you should the need arise) or to check the Australian consulates' homepage here in Osaka in which I am mentioned.
If you need any other assistance in clearing this matter up please do not hesitate to contact me by email …
Sincerely,
Alfred Weinzierl
Executive Director A-UN
I do not think it necessary for me to go into detail as to the subsequent events which lead to the applicant's convictions (in respect of theft and drugs) which resulted in his being sentenced to a term of imprisonment of three years, this occurred in June 2000. It is sufficient, I think, for me to note that the visa applicant was throughout a constant source of support as, indeed, she was subsequently while he was in prison. She was, in particular, involved in the appointment of and instructions to Miss Yukita, who represented the applicant. T page 17 is a letter from Miss Yukita, which reads as follows:
…
Mariann [sic] Mattingly-Ferris was not questioned by the police in relation to Steves [sic] crime, also she was not implicated in court in his crimes.
Jurie Yuita
Attorney at law, as Steve's defence lawyer
(j) It is convenient at this stage to refer to the decision of Emmettt J in Minister for Immigration and Multicultural Affairs v Chan [2001] FCA 1552, which is referred to in some detail in clause 17 of the respondent's statement of facts and contentions and quoted previously in these Reasons. It is clear, of course, that the visa applicant and the applicant were (and are) associated. As Emmett J noted, the scheme of the provision is to confer upon the respondent a discretion under section 501(2) of the Migration Act 1958 ("the Act"). Standing in the shoes of the respondent Minister, I am satisfied that in this respect the discretion should be exercised in favour of the visa applicant, and having regard to the abundant evidence before me that she was in no way implicated in the crimes for which the applicant was convicted.
(k) The visa applicant applied for a spouse visa in Japan in December 1999. T page 97 makes it clear that the visa applicant was asked whether she had ever been convicted of a crime or offence in any country ("including any conviction which is now removed from official record"). The visa applicant answered in the negative and thus did not disclose the visa applicant conviction. Nor for that matter did she do so when she applied for a visitor's visa or in the landing card completed by her on each of three occasions when she landed in Australia. I have previously referred to exhibit R1 which indicates that the relevant question in the landing cards refers merely to convictions and does not go on to include convictions which have been expunged or have otherwise been removed from any records.
(l) Exhibit A3 refers to the Attention Deficit Disorder from which the visa applicant suffers. That disorder results in a difficulty in relation to attention to detail. In any event, the visa applicant believed, and I accept, in relation to the spouse visa and to the first landing card that the visa applicant conviction had been expunged in such manner that it need not be reflected. (I again note that the spouse visa application contains a question which would, in any event, encompass the visa applicant conviction even if it had been removed from the record.) The visa applicant also gave evidence in this context as to other family illnesses and deaths (and including both of her grandmothers) which, together with her concern for the applicant, had the result, as she put it, that this consideration went "to the back of the bus".
(m) The visa applicant obtained a visitor's visa for Australia and on entry into Australia stayed with the applicant's father, Mervyn Ferris; she was obliged under the terms of her visa to leave Australia periodically and thus on two occasions she departed to Thailand. She is currently in New Zealand helping to care for a sick friend, and as to which see exhibit A5.
(n) My attention was drawn to an exchange of correspondence between the visa applicant and Mr S.A. Millwood, a delegate of the respondent situated, at the time, at the Australian Embassy in Tokyo, which appears at T page 113 and following pages. Mr Millwood sought information as to how to contact the applicant. The visa applicant replied, but only after a period, that the applicant was in prison. It was suggested that the application by the visa applicant obliged her to notify the authorities of the fact that her husband was in gaol. The fourth dot point, under the Declaration at T page 89, contains an undertaking to notify the authorities of any change in her personal circumstances. I do not read that undertaking as encompassing an obligation to inform the authorities of the fact that her husband had been sent to gaol; however, and in any event and after the request, (but perhaps somewhat belatedly) she did advise the authorities.
EVIDENCE OF THE APPLICANT
4(a) The applicant confirmed, in relation to the offences of which he was convicted, that he was guilty both of shoplifting and that he was also in possession of 200 Ecstasy tablets. Following the death of his sister, Kathryn, he became very depressed and became dependent on "uppers" such as Ecstasy and amphetamines.
(b) The applicant said that he not only took "uppers" but also sold "uppers" to other foreigners, but never any of the persons who might be possible students. It is to be noted in this context that the applicant was involved in assistance to persons wishing to study in Australia. He is some two years younger than his wife. He had, as a mature age student, embarked on a degree in Asian Studies at La Trobe University. He was awarded a scholarship to study Japanese at a sister university in Japan. Aware that he would need financial assistance in addition to the scholarship moneys, he managed to obtain a contract on behalf of the Northern Melbourne Institute of TAFE to seek foreign students for that institution; this is apparently achieved through agents in Japan. Indeed, after two semesters at the sister university, to which I have referred, the applicant deferred his studies in order to conduct the same business activity on a full-time basis.
(c) The sentence imposed upon the applicant was one of three years in gaol. He considered an appeal but decided that, to pursue an appeal, would be imprudent since, if the appeal failed, he would apparently receive less credit for the period already spent in gaol. He was in custody from the time of his arrest until he commenced his sentence at Kobe gaol in September 2000. The applicant said that if he had been a Japanese, he might have received a suspended sentence given that he was a first offender, but that suspended sentences were not usually given to foreigners who might simply leave Japan. He was, moreover, sent to one of the most unpleasant prisons in western Japan where the other prisoners were, in the main, of the "Mafia" type. The conditions were bad; he was allowed to send very few letters and had no access to books. On one occasion, an argument with a fellow prisoner resulted in a period of solitary confinement in conditions of appalling severity. The applicant received the maximum time off for good behaviour; he returned to Australia after his release from Kobe prison in May 2002.
(d) The decision of Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 is authority for the proposition that it is not for this Tribunal to question findings or sentences of a Superior Court. But SRT does not apply to a sentence imposed in Japan. It seems to me that it is at least possible that in Australia a court would not have imposed so heavy a sentence and might indeed, for a first offender with, thus-far, an unblemished reputation, have imposed a suspended sentence.
(e) The applicant was, like the visa applicant, articulate and in my view honest. His conviction has the effect that it would not be possible for him to join his wife in the United States. Indeed, New Zealand (which he has never visited except once while in transit) might also be closed to him.
5(a) The evidence of each of the visa applicant and the applicant before me was, as I have indicated, articulate and credible. Mr Brereton's cross-examination in each case was brief and so much so that it was plainly indicative of his acceptance of the truth of their evidence. The visa applicant, in particular, even over a telephone link from New Zealand, was genuinely moving.
(b) There are some aspects of the visa applicant's evidence which are deserving of mention. Before me, she said that the visa applicant conviction was really attributable to a crime committed by Elizabeth McConnell. There are indications in the T documents of a more direct responsibility but, on the other hand, T page 110 affirms that the Disneyland incident was not an incident in which she was a primary participant. I have said that the visa applicant has not yet completed her degree and is, in her words, two semesters away from completing it. However, in a letter, which appears at T page 117, she said (and this was not true) that she had completed a 4-year college degree. Based on her current rate of progress, "two semesters away" might be a considerable period of time. As to the various forms and the visa application itself, the visa application in its terms required information as to an expunged conviction and, by the time of the second and third landings, the visa applicant knew that, in order to achieve the obliteration of the visa applicant conviction, a petition would be required.
(c) Against this must be set the continuous and unwavering devotion displayed by the visa applicant to her husband in difficult circumstances. She wrote to him constantly; when giving evidence to the Tribunal, the applicant produced what looked like a stack of letters which plainly gave him considerable comfort through a most terrible ordeal. I do not mean to suggest that the applicant was incorrectly convicted in Japan; he was clearly guilty. However, I do not think his ordeal in Australia would not have been even remotely as severe, or for that matter, as long.
(d) On the balance of probabilities, the visa applicant committed breaches of section 234 of the Act and the maximum penalties prescribed are such that they cannot be disregarded. But when one analyses the situation as a whole, one has to remember that the visa applicant conviction occurred 10 years ago and was quite clearly a minor matter only and where the guilt of the visa applicant herself was open to question. The failure to disclose the visa applicant conviction cannot, in my view, be regarded in too serious a light. I think that at least for the visa application and in respect of the first landing card, the visa applicant had some basis for her belief that the visa applicant conviction has been expunged, because the probation period of three years had long since expired. As to the two later landings, there are two distinct possibilities; the first is that the visa applicant, because of her syndrome, referred to in the medical evidence before me, and because of her worries generally, simply missed the question; the alternative is that she did not miss it but feared that to furnish a "yes" answer might involve her in landing complications. I think that the first alternative possibility is to be preferred, while accepting that the latter cannot be ruled out. However, if one asks oneself whether a section 234 prosecution is likely, or if were it to be brought, would result in a custodial sentence or even a fine (other than a nominal fine), the answer must, in all the circumstances, be in the negative.
The first inquiry then is as to whether the visa applicant fails the character test. The only negative aspects are the section 234 breaches to which I have referred but to be set against this, there is so much positive evidence, including evidence of recent good conduct (and in particular, but not only, her care of her seriously ill friend in New Zealand), that she passes the test. That is not to say that breaches of section 234 of the Act are to be ignored or lightly regarded; however, the context in which they occurred must always be relevant. It is my view that the circumstances are such that they would be treated lightly if they were actioned at all. The evidence before me concerning the visa applicant is overwhelmingly in her favour.
I have made it clear that I do not think that it can be said that the visa applicant has failed the character test. In case it can be said or even suggested that I am in error in this regard, I propose, if only for the sack of completeness, to consider Part 2 of Ministerial Direction Nº 21 ("the Direction") made pursuant to section 499 of the Act and which is, of course, binding on me. Clause references in this clause 7 should be construed as references to numbered clauses in the Direction.
(a) The primary considerations are in accordance with clause 2.3:…
2.3 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.
Clause 2.3(c) is, of course, not relevant in this case.
(b) As regards to clause 2.3(a) read with clause 2.5, it is my view that the risk of recidivism is, for all practical purposes, nil and that the Australian community does not need protection against the visa applicant. Although the breaches of section 234 of the Act, to which I have referred, fall within clause 2.6(c) of the Direction, they are, when taken in context, minor.
(c) As to clause 2.12, it was suggested that, to grant the visa applicant a visa would, in effect, reward her (improperly) for breaches of that Act. My attention was drawn to my decision in Re Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586 which is apposite; clauses 14(f) and 14(g) of that decision are repeated in this decision as follows:
…
(f) As regards the expectations of the Australian community, I refer to the decision of Deputy President McMahon of in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 (at paragraph 34), in which he said that the Australian community would expect this Tribunal to interpret the Act in a humane and compassionate fashion. It seems to me, on the evidence before me, that what we have in this case is an Applicant who was sentenced to a lengthy term of imprisonment for an offence which either would not be an offence at all in Australia, or if it were an offence, would be treated as being of little or no importance. At all events, it would not have attracted a custodial sentence. The Applicant served approximately six years in prison, on his evidence, because he spent the night with a girlfriend. As to what happened on that night, and as to whether there was intercourse between him and his girlfriend was not before me, but does not, in my view matter in that nothing, in Australian eyes, turns on this point. I am inclined to the view that the Australian community would expect me to treat the Applicant compassionately on the basis that both the conviction and sentence and the breaches of section of 234 of the Act should be treated as part of one composite whole, and where, in all likelihood, the Australian community would think that he has been punished more than sufficiently already, for whatever transgressions may have taken place. I note also in this context the comments of Deputy President Chappell in Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551 where he said (at paragraph 59) that in circumstances such as the Applicant in this matter, the Australian community "would display a humane and positive response".
(g) Deterrence also is not in my view a major issue. The facts in this case are on any basis unusual and arguably unlikely to reoccur. Matters such as this invariably turn on their own facts, and this decision is not likely to serve as a precedent which will affect the rights of others. It is often difficult to know how to deal with the question of deterrence given that empirical evidence as to deterrence is invariably and inherently unlikely. But I do not think that this decision, whichever way it went, would have any relevant deterrent effect; the circumstances referable to the Applicant appear to me to be very much of a sui generis nature.
(d) I do not accept or agree that to refuse a visa would have any deterrent effect of any nature in a case such as this.
(e) To refuse a visa would, moreover, cause immense hardship within clause 2.17. This young couple has been separated for more than two years. She has been refused permission to come to Australia and he would not be given permission to go to the United States. As I have indicated, New Zealand (which he has never visited, except in transit) is not an available option and, in any event, he would not wish to go New Zealand.
(f) If only for the sake of completeness and as regards clause 2.8(e) of the Direction, the applicant might have incurred a lighter sentence in Australia. The visa applicant, in relation to the visa applicant conviction, might, as a first offender, have received a suspended sentence if she had been convicted at all. An Australian Magistrate might have listened to her version of that event and appreciated that in fact the offence in question was committed by Elizabeth McConnell.
(g) In the circumstances and if relevant, the discretion under Part 2 of the Direction should be exercised in favour of the visa applicant.
8(a) There was little evidence before me as to the Japanese court proceedings. In particular I do not have any court findings or sentencing remarks by the Japanese judicial officer. Those remarks might not have been binding but they would have been helpful. It is conceivable that the conduct of the applicant was such that he deserved the sentence imposed on him and that, and previously in these Reasons, I have been over-generous in my view that he was treated severely or that an Australian court in similar circumstances might have been more lenient. It must be remembered though that the applicant's character is not in issue before me; he is so-to-speak "supporting cast" where the visa applicant is the "lead" and so that it is her character which is in issue.
(b) The visa applicant is by no means blameless. The visa applicant conviction should have been disclosed in visa applications and in the landing cards; this is especially the case in respect of the visa application which in its terms related to expunged convictions and to the second and third landing cards; I have taken the view that the omission was not deliberate but a different view is tenable on the facts.
(c) However, and as I have indicated, I do not think that the visa applicant's conduct should be viewed in a serious light. The visa applicant conviction related, even if one accepts that she was correctly convicted and sentenced, to a minor offence, which occurred a long time ago and has now by court order been expunged. In finding that she passes the character test I have taken into account the evidence before me, and including the warm references, admittedly in the main by members of her family or family-in-law, which speak of her in very favourable terms, as a caring and concerned and good person. Her parents in-law were not, it will be remembered, cross-examined and their evidence must stand. Her devotion to her husband in difficult circumstances deserves credit; so for that matter is the care devoted to her sick friend in New Zealand. I have taken into account of course the favourable impression made in her evidence, by the visa applicant herself; that evidence was plainly truthful and it is significant that her cross-examination was perfunctory.
(d) But even if I am wrong in my assessment of the character test (and I do not think I am), this is a case which points in strong terms to the exercise in the visa applicant's favour of the discretion contained in Part 2 of the Direction.
Accordingly, the Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Act should be exercised in favour of Marianne Elizabeth Mattingly-Ferris.
I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J. Block(sgd) Catherine Thomas
ClerkDate of Hearing: 28 June 2002
Date of Decision: 17 July 2002
Counsel for the applicant: Mr R. Appudurai
Solicitor for the applicant: EinsiedelsSolicitor for the respondent: Mr M. Brereton, solicitor with Australian Government Solicitor
0
13
0