Fox and Minister for Immigration and Multicultural Affairs - [2001] AATA 1040

DECISION AND REASONS FOR DECISION [2001] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL)

N° W2001/201

GENERAL ADMINISTRATIVE DIVISION)

VICTORIA MARIE FOX

Applicant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             24 December 2001
Place:            Perth
Decision: The decision under review is set aside. The matter is remitted to the respondent with a direction that the discretion in section 501 of the Migration Act 1958 should be exercised in the visa applicant's favour despite his being a person not of good character.

…..(sgd G. L McDonald)….
Deputy President
IMMIGRATION — sub-class 300 (Prospective Marriage) visa - visa refusal – whether visa applicant of good character – whether criminal conviction and sentence for use of heroin should have been acknowledged – seriousness of crime - applicant pregnant with visa applicant's child – Muslim marriage not recognised under Australian law - best interests of the child - degree of hardship which may be suffered by applicant and her family - Ministerial Direction 21 - whether discretion should be exercised – risk to the community
Migration Act 1958 s.501

REASONS FOR DECISION

Deputy President G.L. McDonald

The applicant Ms Victoria Marie Fox, an Australian citizen, is the fiancée of the visa applicant, Mr Matt Sanny, who is a citizen of the Republic of Indonesia. The visa applicant is aged 29 and the applicant is aged 28.
The applicant and the visa applicant met when the applicant was holidaying in Bali, Indonesia, in September 1996. A relationship developed between them in June 1997. In October 2000 the applicant learnt she was pregnant to the visa applicant with the baby's birth due on 10 June 2001. They intended to marry in Perth on 3 February 2001. This became impossible as the visa applicant could not secure entry to Australia and they underwent a Muslim marriage ceremony in Bali on 14 February 2001. That marriage is not recognised in Australian law.
The visa applicant first applied to enter Australia as a tourist in an application dated 26 March 1997. When he completed the visa application form he ticked "No" to the question "Have you been convicted of a crime or any offence in any country?". He answered in the same manner in a later undated application and a further application dated 7 May 1997. On all three occasions the visa application was unsuccessful.
On the 28 February 2000 the visa applicant, with the acknowledged assistance of the applicant, completed an Application for Migration to Australia by a Partner form for a sub-class 300 (Prospective Marriage) visa. He again ticked "No" to the above-mentioned question. The visa applicant signed the declaration at the end of the form declaring the information provided was correct and further declaring he understood that the giving of false information may result in the application being refused.
In order to determine his application, the visa applicant was requested by the Australian Consulate's office in Indonesia to provide a Police Clearance from the Indonesian Police. A certificate from the Police Precinct of Banyuwangi was provided which confirmed him as not having any criminal convictions. It appears that the Indonesian policing is carried out on a district (precinct) basis with no central records being kept. In fact the visa applicant had been convicted but in Bali (a different precinct from Banyuwangi) in late 1997 of a drug offence involving heroin and was sentenced to imprisonment for a period of one year.
The visa applicant has had two additional contacts with the police. In 1996 he was detained for assisting a friend in the making of an identification card and in the same year was detained for a week for being in company with a friend who had and or used illegal drugs. The details of these two contacts are somewhat unclear including as to whether he was tried and convicted of any offences or, particularly in relation to the latter event, detained in custody but subsequently released without a conviction. Little weight can be placed on either of these two circumstances singly, in combination with each other or in combination with any other adverse circumstance attaching to the visa applicant as being decisive issues in his application for a visa.
A medical examination carried out by a Dr Pangkahila as part of the visa applicant's screening with respect to the visa application, reported him as having taken illicit drugs. A follow-up examination and psychiatric report, requested by Australian Consulate Officials in Indonesia, resulted in the doctor revealing the visa applicant had "…drug taking behaviour … in early 1999 until November 1999" (T38). There were however no resulting physical impairments reported. A psychiatric report concluded no psychiatric impairment.
In her oral evidence to the Tribunal, Dr Pangkahila said that she first commenced treating the visa applicant in September 1999 with respect to a heroin habit. She said she initially saw him daily and then every second day as his treatment progressed and subsequently on a less regular basis. She told the Tribunal that the visa applicant was not taking heroin when she commenced treating him and that during treatment there was no evidence of him relapsing.
In an interview with departmental officials in Indonesia the visa applicant's criminal offence(s) was admitted after initial denial. A follow up letter apparently prepared by the applicant, but signed by the visa applicant, acknowledged the misleading conduct of the visa applicant and applicant in the following terms:
As we are fully aware this is not excusable and should have told the truth from the start regarding my criminal history … I have paid strongly for things that have happened in the past and never want to put myself in that situation again, I am fully aware of the consequences this has had and can have on my life … we can only apologises (sic) for not coming forward sooner with (sic) and have learned from this mistake.

The visa applicant's application was refused on 27 April 2001 on the basis that he did not pass the character test provided for in section 501 of the Migration Act (1958) because:

he had a substantial criminal record (section 501 (6));
he has or has had an association with….whom the Minister reasonably suspects has been or is involved in criminal conduct (section 501 (6)(b));
is not of good character having regard to either his past and present criminal conduct or general conduct (section 501 (6)(c)); and
if he was allowed to enter or remain in Australia there is a significant risk that he would engage in criminal conduct in Australia (section 501 (6)(d) i).

It is against that refusal that the applicant has sought review by this Tribunal.

While no official criminal or court records have been secured from Indonesia the Tribunal is satisfied to accept the visa applicant's acknowledgment that he received a sentence of 12 months imprisonment for a heroin related offence. Accordingly for the purposes of section 501 (6)(a) the visa applicant has a substantial criminal record and does not pass the character test in section 501 (2) of the Act. For the reasons earlier expressed the Tribunal is not satisfied that the visa applicant fails the character test because of breaching section 501 (6)(b) (ie association with a person reasonably suspected of involvement with criminal conduct). The issues of his past and present criminal and general character as well as the likelihood of his engaging in criminal conduct in Australia are matters best deferred to the Tribunal's consideration of the issues connected with the exercise of the discretion provided for in section 501 (2) of the Migration Act. In exercising that discretion the Tribunal is bound by Ministerial Direction 21.
The Direction requires the Tribunal to consider three primary considerations, namely:

the protection of the Australian community,
the expectation of the Australian community,
the best interests of any child.

In relation to the protection of the Australian community the Direction requires the decision-maker to consider:

The seriousness and nature of the conduct
The likelihood that the conduct may be repeated
Whether visa refusal may prevent or discourage similar conduct (ie general deterrence)

Clause 2.6 of the Direction nominates a number of offences which are considered by the Government to be very serious. Clause 2.6(a) nominates offences involving illicit drugs of dependency such as heroin as being of particular concern. The Tribunal accepts that the visa applicant's acknowledged involvement with the taking of heroin is consequently a matter of serious concern. However the evidence does not disclose that the visa applicant was involved in its production, distribution, trafficking or commercial dealing. Rather the evidence indicates that he became an addict for a time. It is of course difficult for an Australian Tribunal to form a view whether the imposition of a one-year prison sentence by an Indonesian court constitutes for purposes of clause 2.7 of the Direction "an indication…of the offender's conduct against the community". However the Tribunal notes that one year's imprisonment constitutes the minimum term for purposes of the definition of "substantial criminal record" contained in section 501 (7)(c). It would also be fair to conclude that the sentence of one year must be considered to be at the lower end of the scale for a heroin-related offence. In terms of the protection of the Australian community the fact that there is no evidence of the visa applicant dealing in heroin to the detriment of other people or to secure a profit are other significant factors against the offence being regarded as in the most serious category.
The Tribunal notes the following factors as mitigating the seriousness of the above conduct. The visa applicant in his evidence to the Tribunal with respect to his involvement with heroin asserted he was no longer addicted and was not taking the drug. In this he was supported by the applicant, the evidence of the examining doctor and of the psychiatrist. The visa applicant told the Tribunal that he had been addicted to drugs for a period of four or five months and that he took heroin two or three times a day. However he claimed that the last time he took heroin was in 1997 and once in 1998 (despite the doctor, in her report, concluding that he took heroin during 1999). The visa applicant also admitted that he had tried marijuana and the applicant confirmed to the Tribunal that she had witnessed him taking marijuana approximately once every three months. The applicant told the Tribunal that she did not want to live with a drug addict. Both the applicant and her mother, Mrs Phyllis Fox, assessed that there was "no chance" of the visa applicant taking heroin again.
There can, of course, never be any absolute guarantee that an addict, whether it be heroin or some other drug of addiction, will never again revert to his or her habit. The task of the decision-maker is to determine the level of risk. In this case the Tribunal found the evidence of the treating medical practitioner combined with that of the consultant psychiatrist influential in supporting the expressed determination of the visa applicant that he was cured of the habit. Additionally, noting the visa applicant's evidence that he appreciated the need to work and support his family leaves the Tribunal satisfied that the risk to Australian community constitutes an acceptable risk.
Clause 2.6(c) provides that the giving of a false or misleading statement in connection with entry into Australia is also a matter of seriousness. In this case it is clear that the visa applicant, with the knowledge and support of the applicant, misled the Australian migration authorities as to his past criminal record. While there may be some doubt as to whether any acknowledgment needed to be made in the three earlier applications completed by the visa applicant, there certainly was a need to reveal the fact that he had a criminal conviction and sentence of one year's imprisonment for the use of heroin and that fact was not revealed in his latest visa application. The completion of the false statement was compounded by his apparent initial denial of the conviction and sentence during the interview carried out with the immigration officials. It was also compounded by the visa applicant providing certification from his local police station as to his crime free past knowing in fact that had he obtained such a certificate from the Bali precinct the information would have revealed his heroin offence. As this Tribunal has in other proceedings concluded the misleading of migration officials on material facts in connection with non-citizens entering Australia it is a serious matter.
The attempt by the visa applicant and applicant to mislead the migration authorities clearly exhibits a lack of sound judgement on their part. It is a matter of concern to the Australian community, and the community is put at risk, if those seeking to enter Australia seek to hide and or mis-state their past circumstances so that the immigration officials on behalf of the community may reach a misinformed decision. An apology after the misleading information has been discovered is in the opinion of the Tribunal of little weight as a mitigating circumstance.
It is unlikely in Tribunal's view that if the visa refusal is on the basis of the visa applicant's heroin conviction that that would have any or any significant general deterrence effect. The factors which cause a person to use heroin are uncertain and differ from person to person. The refusal of a visa on that basis in respect of one person is unlikely to stop others from their addiction. The refusal of a visa on the basis that the visa applicant has misled the migration authorities is, however, more persuasive. If it was thought that such behaviour was inconsequential then others may be inclined to mislead the authorities particularly in those areas where the truth is known to the applicant and may, as here, be readily disguised from the Australian migration authorities. In this case the production of the police certification revealing no offences whereas in fact an offence had been committed in another location reveals, when combined with a denial on the application for a visa form, indicates a clear intention to mislead the authorities. As a result, the issue of general deterrence is a weighty factor which must be seriously considered by the decision maker when weighing it with all of the other factors which must be considered.
In the Tribunal's view neither the seriousness of the visa applicant's heroin conviction and sentence nor the misleading of the Australian immigration authorities are by themselves or in combination so serious that the Australian community would resile from considering the visa applicant as a candidate for an entry visa to Australia.
With respect to the best interests of the child the policy recognises in clause 2.15 the desirability of the child remaining with its parents. The child being born in Australia to an Australian citizen is an Australian citizen. Whether or not the visa application is granted the applicant expressed the view that she and the visa applicant intended to live together ie if the visa application was refused then the applicant (and the child) would move to live in Indonesia. The applicant told the Tribunal that she could not provide as well for her child if she was to live with the visa applicant and the child in Indonesia. The applicant has a steady, well paid job in Australia. The applicant had, however, not made enquiries in Indonesia as to the job market and was unable to say whether suitable employment may be able to be found for her. The applicant has only a passing knowledge of the Indonesian language and this along with any formal requirements imposed by the Indonesian authorities eg the need for her to have a work permit may inhibit her job prospects. It is clear that the applicant and the visa applicant have accommodation available through the visa applicant's family if the visa application is unsuccessful and the applicant and child move to Indonesia.
It was submitted on behalf of the Minister that the Tribunal would be taking a "eurocentric" view to say opportunities were better for the child (Sean) in Australia than they would be in Indonesia. It is clear whichever country the child lives in he will be dominated by the culture and mores of that country while if not to the exclusion then certainly to the diminution of exposure to the culture and mores of the other country. In terms of the policy the Tribunal accepts as a fact under the provisions of clause 2.16 that while both basic educational and health support systems are available in Indonesia those facilities and systems are generally acknowledged as being better provided in Australia than in Indonesia. The evidence of the applicant of the availability of medical facilities when she was in Indonesia confirmed this. The Tribunal is, however, not satisfied that there is sufficient material before it which would by itself be determinative on the basis that Sean's best interests would be served if the visa applicant was allowed to live in Australia as against the applicant and Sean living in Indonesia.
There was strong evidence before the Tribunal that the applicant enjoys a very close relationship with her mother and father (with whom she and Sean currently continue to live), her brother, who also lives at home, and her sister who is married with four children. Additionally there is an extended family of two maternal aunts and five cousins all living within close physical proximity. Mrs Phyllis Fox told the Tribunal that she would be "devastated" if her daughter (and grandchild) go to live in Indonesia. The Tribunal is satisfied that while the visa applicant's family have accepted the applicant and Sean and continue to support the visa applicant that the applicant and her family, including her extended family, enjoy a particularly close relationship. The applicant's father has incurred injury in an accident which restricts his movement without assistance. The applicant's mother said that while this was coped with when she and her husband attended the Muslim marriage ceremony in Indonesia it would become, along with financial restraints, a significant impediment to she and her husband visiting the applicant and her family if the applicant was required to live in Indonesia. The evidence leaves the Tribunal satisfied that the applicant and her family would suffer hardship if the visa applicant in unsuccessful in obtaining a visa.
The visa applicant has lived and worked away from his family for extended periods. He expressed a strong preference to come to Australia to be with the applicant and their child. There was no evidence that the visa applicant's family would or would be likely to suffer hardship if the visa applicant left Indonesia to live in Australia.
Clause 2.2 of the Ministerial Direction provides that in reaching a decision:
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.

Clause 2.1(7) provides that the relevant non-primary considerations should "generally … be given less individual weight than given to the primary considerations". The Tribunal also notes that in reaching a decision on the exercise of the discretion under part 2 of the Direction the applicant (and or visa applicant) are not to bear any onus of proof. This is contrasted to disputes where the passing of the character test is in issue in which case the visa applicant bears an onus to satisfy the decision-maker that he or she passes the test. It is also clear that in determining "other considerations" under clause 2.1(7) the considerations are inclusive and not exclusive. A further factor, which is in any event obvious by the commencement of these proceedings, is the desire of the applicant and visa applicant to live in Australia and the desire of the applicant's family who are Australian citizens that this opportunity should be given to the applicant and to the visa applicant.

From the facts in this case the Tribunal is satisfied that while serious the visa applicant's involvement with heroin in the absence of evidence of involvement in its production, distribution, trafficking, commercial dealing or selling along with the factor that the visa applicant sought and accepted professional treatment, is no longer taking heroin, and suffers no apparent long term impairment and the sentence imposed constituting in terms of the Ministerial Policy the minimum sentence for a finding of bad character is not at the most serious end of the scale of such offences. The Tribunal is also satisfied that the attempt to mislead the Australian immigration authorities is a serious matter and there is, as the Tribunal has concluded in its reasons, also the issue of general deterrence which requires to be considered in as far as the visa may be granted to someone who has misled the immigration authorities. However the Tribunal is satisfied that this conduct is atypical conduct of the applicant and visa applicant and was engaged in as the result of their anxiety to secure entry for the visa applicant so that they could be married in Australia and be together at the birth of their child. The Tribunal is satisfied that the applicant and visa applicant have a genuine relationship and while the marriage is not recognised in Australian law they regard themselves as genuinely married. The Tribunal has in its reasons expressed the view that while the best interests of Sean are met by him living with his parents in Australia in this case this is not by itself a decisive factor to alone be determinative. The Tribunal has concluded the applicant and her family would suffer considerable hardship if the visa applicant was unsuccessful in his application. Finally there is also as a non-primary consideration the desire of the applicant and visa applicant to live in Australia rather than in Indonesia.
The issues in this case are finely balanced and the Tribunal has found it difficult to reach the "preferred decision". In the end however a combination of it being in the child's best interests (in terms of health care and education) the security of income the applicant is able to generate to support the child, the genuine hardship which the applicant and her family would suffer if the applicant does not remain in Australia a long with Sean being an Australian citizen, his mother (the applicant) is an Australian citizen and it being the desire of both parents to bring Sean up in his country of citizenship combine to outweigh the seriousness of the visa applicant's criminal conviction, his misleading the immigration authorities and the need to recognise the effect of general deterrence in warning off those similarly inclined people. Accordingly the discretion available in section 501 should be exercised in the visa applicant's favour despite him being a person not of good character.
The decision under review is set aside. The matter is remitted to the respondent with a direction that the discretion in section 501 of the Migration Act 1958 should be exercised in the visa applicant's favour despite his being a person not of good character.
I certify that the twenty-seven (27) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G.L. McDonald
Deputy President
Signed:         ...................(sgd V Wong)..................................
  Associate
Date/s of Hearing   31 October 2001
Date of Decision   24 December 2001
Counsel for the Applicant         Mr R Vandenberg
Counsel for the Respondent    Mr A Jenshel