Frankham and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 738
•2 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 738
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/105
GENERAL ADMINISTRATIVE DIVISION ) Re SCOTT FRANKHAM Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date2 August 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes therefor a decision that the discretion under s 501(1) of the Migration Act 1958 to refuse to grant a parent (AX-103) visa to the applicant not be exercised.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Parent (AX–103) Visa – refusal to grant visa – discretion to refuse to grant visa on failure of character test – substantial criminal record – Ministerial Direction No. 21 – primary and other considerations – decision of respondent set aside.
Migration Act 1958 (Cth), s 501(1)
Ministerial Direction No 21 Visa Refusal and Cancellation under Section 501 of the
Migration Act 1958
Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 81 ALD 588
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCR 268
Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
REASONS FOR DECISION
2 August 2005 Deputy President D G Jarvis 1. A delegate of the respondent, decided on 17 February 2005 that Terence Frankham (“Mr Frankham”) did not pass the character test under s 501 of the Migration Act 1958 (the “Act”), and exercised the discretion pursuant to s 501(1) of the Act to refuse to grant him a parent (AX-103) visa. The applicant, Scott Frankham, in his capacity as Mr Frankham’s sponsor, applied to this Tribunal for review of that decision. He is the son of Mr Frankham.
Issues for the Tribunal
2. Counsel for the applicant, Mr Warren, conceded that Mr Frankham did not pass the character test under s 501 of the Act. The issue for the Tribunal is whether the discretion to refuse to grant the visa should be exercised in the circumstances of this case. I have decided for the reasons referred to below that the discretion should not be exercised.
Background
3. The following background facts were not in dispute. Mr Frankham was born on 2 September 1951 in Zambia, and is 53 years of age. He and Carol Cunningham were married in 1971. Their son, Scott Frankham, was born on 4 September 1978. Mr Frankham and Carol Cunningham divorced in 1981. Mrs Cunningham migrated to Australia, arriving in 1989 with Scott, who was then eleven years of age.
4. Mr Frankham visited Australia on three separate occasions between 1990 and 1994. The last visit was in 1994, and he remained in Australia until 2002. In late 1994, during his stay in Australia, he began working casually cleaning windows and later as a carer to an elderly infirm lady, one Eve Helman, who was suffering from Alzheimer’s disease. These activities were in breach of conditions attaching to his visitor’s visa restricting Mr Frankham from undertaking any paid work.
5. In 1996, Mr Frankham was interviewed regarding this work and was advised his visitor’s visa would be cancelled as a result of his breach of the working conditions.
6. Following immigration advice Mr Frankham applied for a parent visa. He was sponsored by Mrs Cunningham on behalf of their son Scott, who was a minor at that time. However, following a disagreement between Mrs Cunningham and Mr Frankham, Mrs Cunningham sought to withdraw her sponsorship, and wrote to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) advising them of this. DIMIA later notified Mr Frankham that in light of Mrs Cunningham’s withdrawal his visa application was refused.
7. Mrs Cunningham subsequently wished to recant from her withdrawal of sponsorship, and the issue was resolved by the Migration Review Tribunal (“MRT”) in favour of Mr Frankham. Despite the MRT’s decision to approve the visa, DIMIA was unable to grant the visa as it was subject to a quota. Mr Frankham was therefore placed in a queue with a due date for approval two or three years into the future.
8. He was then placed on a bridging visa to allow him to arrange suitable care for Mrs Helman, at which time it was anticipated that he would return to the United Kingdom to await the grant of the parent visa. However, during this period in Australia, he was convicted of a number of criminal offences, subsequently resulting in the cancellation of his bridging visa and his voluntary return to the United Kingdom. He now works there for one Mrs Roberta Gilbert as a carer, looking after her 92 year old husband.
9. Mr Frankham has the following convictions in South Australia for which he was sentenced to the various penalties listed below.
(a)On 2 February 1997 he was convicted in the Adelaide Magistrates Court of driving an unregistered vehicle and exceeding the speed limit, and was fined $234.
(b)On 23 June 1998 he was convicted in the Adelaide Magistrates Court of failing to furnish a taxation approved form, and was fined $1000.
(c)On 15 February 2002 he was convicted in the District Court of South Australia of producing a controlled substance, being marijuana, and was sentenced to two years and three months’ imprisonment, which was suspended on entering a good behaviour bond of two years.
(d)On 6 May 2002 he was convicted in the Port Adelaide Magistrates Court of two counts of larceny, and on each charge was convicted without penalty.
Legislation
10. Section 501(6)(a) of the Act provides in effect that a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
11. Section 501(1) provides as follows:
“(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.
Note: Character test is defined by subsection (6).”
Direction No. 21 Issued by the Minister under s 499 of the Act
12. The Minister for Immigration and Multicultural and Indigenous Affairs has issued a Direction, being Ministerial Direction No. 21 (the “Direction”), pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. By virtue of s 499(2A) decision-makers must comply with the Direction. Under the Direction, decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I will refer below to these considerations.
Evidence and Findings of Fact
13. I set out my findings of fact, which are based partly on the witness statements lodged with the Tribunal, partly on oral evidence given by the witnesses who gave evidence, and partly on the documentary material tendered during the hearing. Except where I specifically comment otherwise, I accept the evidence of Mr Frankham and the witnesses who appeared before the Tribunal.
14. I record that following the conclusion of the hearing, I asked the applicant’s solicitors whether they wished to call two further persons who might have been able to confirm Mr Frankham’s evidence in relation to his involvement in the offence relating to the production of cannabis. Those persons were Mr Frankham’s brother Michael Frankham, and Oliver Floubisher. I refer to them below. The applicant’s solicitors advised that they were instructed that Michael Frankham was willing to give evidence, and to endeavour to locate Oliver Floubisher and ascertain whether he was willing to provide evidence. The respondent’s solicitor indicated that the respondent was “inclined to object” to this further evidence for various reasons referred to in a letter to my associate dated 1 July 2005. The applicant’s solicitors then advised on 25 July 2005 that they were instructed not to apply to adduce further evidence. In the circumstances I have not pursued the possibility of obtaining further evidence from the two people concerned (who might in any event have refused to answer relevant questions on the grounds of self incrimination, after the Tribunal had informed them of their rights in this regard). In the circumstances, I draw no adverse inference against either party from the absence of evidence from the two people concerned.
Visa Applicant’s evidence
15. Mr Frankham gave evidence by telephone, and confirmed the correctness of his witness statement and a supplementary statement (which were received as exhibit A8).
16. He acknowledged that in 1994, during the six months’ extension of his visitor’s visa, he undertook some casual work washing windows with his son and some of his son’s friends. During examination-in-chief he stated that he had distributed the money received from this work evenly between himself and his son’s friends. Certain earlier inconsistent statements were put to him in cross-examination. He then reaffirmed that he had kept some of the money from the window washing work, and further accepted that he was now aware that this action was in breach of the working conditions of his visa, but stated that he did not believe at the time that this was so. Mr Frankham’s evidence on these points was contradictory, and, to the extent that he claimed not to have known at the time of undertaking the window washing work that he was in breach of his visa conditions, I do not accept it.
17. Mr Frankham was also questioned about his employment arrangements with Mrs Helman, which began in late 1994. He said he had been staying with his former wife (Carol Cunningham) and her new husband, and that a friend, knowing of Mr Frankham’s wish to find independent accommodation, had directed his attention to an advertisement that Dr Helman (Mrs Helman’s son) had placed in the newspaper seeking a full-time carer for Mrs Helman in exchange for food and board.
18. Mr Frankham gave evidence that Mrs Helman was suffering from dementia and Alzheimer’s disease, but that her children did not want her to be placed in an aged care facility. Dr Helman therefore engaged him as Mrs Helman’s carer in exchange, initially for food and board, and later for remuneration when Mrs Helman’s condition deteriorated to a state that required full-time care.
19. In cross-examination, Mr Frankham stated that he did not believe that his initial employment with Mrs Helman constituted work of the kind prohibited by his visitor’s visa or that was of a taxable nature, as he was not renumerated for this work. He also stated that when the terms of his employment were adjusted to include monetary payment, he was aware that this was a breach of his visa conditions, but said that he did not believe he earned enough to require lodgement of a tax return.
20. In light of the evidence adduced under cross-examination regarding Mr Frankham’s prior work history in the accountancy field, albeit in the United Kingdom, I do not accept his evidence of his initial belief regarding what constituted “work” for the purposes of his visa.
21. The conviction in 2002 for producing marijuana resulted in Mr Frankham failing the character test under s 501 of the Migration Act 1958. I now turn to his evidence regarding the circumstances surrounding this offence.
22. Mr Frankham said that in late 2000 his brother, Michael Frankham, and his brother’s wife came to Australia, and initially stayed with him. However, conflict arose between Michael Frankham and his nephew (the applicant’s son) Scott Frankham, after it became apparent that Scott Frankham had become involved in a romantic relationship with Michael Frankham’s daughter, Avril. Michael Frankham then obtained alternative rental accommodation. His wife became sick and returned to the United Kingdom.
23. Mr Frankham gave evidence that during his stay in Australia his brother had expressed an interest in making some money. He said his brother told him that from discussions his brother had had with some of Scott Frankham’s friends, his brother felt he could make money growing marijuana hydroponically. Mr Frankham confirmed to his brother that it was his understanding that this could be done, and said he even drove his brother to “a couple of hydroponic stores so that he could make some inquiries” (exhibit A8, supplementary statement, paragraph 5). Subsequently Michael Frankham established a hydroponics system in his newly rented accommodation.
24. Mr Frankham’s supplementary statement continues:
“6.Whilst I did not encourage or condone the idea, in hindsight I realise that I should have spoken up and told him not to do so and not to be so stupid. I did not do this.
7.I did not know how many plants my brother was planning to grow, nor from where he bought the seeds. I was not with him when the equipment was purchased, or setup at his rented accommodation, or when the seeds were planted. I had no active involvement in the setup at all.
8.However, I am not trying to downplay my involvement in the early stages – I knew what my brother was planning and what he had set up. In fact, I admit (ashamedly now), that I even had an interest as to how it would go. I was and still am a keen gardener (of legal plants). From time to time I visited my brother and saw the setup.
9.I do not know how or through whom my brother intended to sell the marijuana. He never told me and I never asked.”
25. Mr Frankham gave evidence that the conflict between Scott and Michael Frankham continued to grow throughout the establishment of Michael Frankham’s hydroponics scheme. Eventually, it was agreed between Michael Frankham and Mr Frankham that the former would return to the United Kingdom on the condition that the applicant would maintain the marijuana plants until such time as they reached maturity.
26. Mr Frankham said that his actions in agreeing to this arrangement with his brother were stupid and he now understands that it was wrong, but at the time he was extremely distressed at the conflict between his son and brother, and he would have done anything to get his brother to agree to return to England. After his brother left Australia Mr Frankham admitted that he had cared for and maintained the marijuana plants on behalf of his brother, but said that Michael his brother remained financially responsible for the operation, and that his residence and employment remained with Mrs Helman.
27. In September 2001, police raided the rented premises and discovered the hydroponics set up. Following an interview with police regarding this discovery, Mr Frankham was charged with producing a controlled substance and possession of a controlled substance for sale. He pleaded guilty and was sentenced to two years and three months’ imprisonment, which was suspended on his entering into a good behaviour bond. A second charge of possession for sale was not pursued. The fact that the sentence was suspended does not mean it does not qualify as constituting a substantial criminal record for the purposes of s 501(7) of the Migration Act (see Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 81 ALD 588 at [13]).
28. The sentencing Judge referred to the applicant and his brother having involved two juveniles in the commission of the offence. Mr Frankham admitted that one Oliver Floubisher (“Oliver”) was involved. He said that Oliver was a young homeless person, whom he had initially met when walking dogs. After regularly meeting Oliver he came to know that Oliver was having difficulty with his parents, and was effectively living on the street. Mr Frankham offered Oliver accommodation within his apartment at the rear of Mrs Helman’s home. After a period of time it became apparent that it was inappropriate for Oliver to continue living at Mrs Helman’s home, and at Mr Frankham’s suggestion, Oliver went to live in the rented premises formerly occupied by Michael Frankham.
29. Whilst there was some confusion in Mr Frankham’s evidence as to the terms of the arrangement with Oliver, it appears that Oliver was merely required to look after the plants by checking on them, and to alert Mr Frankham to any major problems if needed, such as a fire, and to water the plants and fill up the tanks; however, he (Mr Frankham) would continue to be the person primarily responsible for the care and maintenance of the cannabis plants.
30. In his supplementary witness statement, Mr Frankham sought to excuse his involving Oliver in the production of the plants, by saying that he did not want Oliver to go back on to the street. He also said:
“I was also aware that Oliver was already smoking marijuana (that is, I did not see it as a situation where I was leading him into a life of drugs for the first time). In hindsight, what I did was very wrong. However, I simply say that I allowed Oliver to live in the accommodation with good intentions, rather than bad intentions, in mind. I was not intending to take advantage of him as a juvenile or to involve him in the drug trade.” (exhibit A8, paragraph 23).
31. Mr Frankham disputed that he had involved a second juvenile in the commission of the offence. As to this issue, he said:
“I knew that Oliver’s younger brother stayed over with him from time to time, and whilst I did not go out of my way to stop this, I also did not go out of my way to and had no wish or need to involve Oliver’s younger brother in the maintenance of the plants.”
32. There is a further aspect of Mr Frankham’s involvement with the maintenance of cannabis plants which is of concern. After his brother had returned to England, six cannabis plants were stolen from Michael Frankham’s rented premises. Mr Frankham then cloned approximately 150 plants in their place. He said he did this because he was a keen gardener, but he did not intend to maintain all 150 plants until maturity, and that he never turned his mind to the ultimate conclusion of the scheme. He said that the cloning of such a large number of plants was merely “a bit of fun”. He further said that a considerable number of the cloned plants had died, and the surviving plants had been left in the garage at the house, were not being grown hydroponically, and remained small.
33. Mr Frankham also gave evidence regarding the circumstances that led to his conviction without penalty for two charges of larceny, which were shoplifting offences. The offences took place on 13 and 19 May 2002. He said in each case he took groceries from a supermarket and was apprehended attempting to leave the premises without paying for them. He expressed his remorse for his actions, and said that he did not understand why he had committed the offences, and in both instances he had sufficient money with him to pay for the items he took. Following the two incidents he sought psychological counselling with Ms Janelle Shepherd. Mr Frankham stated that he could offer no explanation for his behaviour aside from his poor mental state resulting from his conviction for production of a controlled substance, and the impact that this would potentially have upon his ability to remain in Australia, and thus be a part of his son’s daily life.
34. Mr Frankham has not been convicted of any offences, either in Australia or the United Kingdom, since May 2002. He gave evidence of having received a caution in 2003 over an incident in England when he was questioned by a security officer who apparently suspected him of shoplifting. However, he said that after he had explained what had led to his being questioned for this suspected offence he was cautioned to be more careful in the future.
35. Mr Frankham also gave evidence regarding his close relationship with his son, and the financial assistance he provides to both Scott Frankham and his former wife Carol Cunningham. He said that his weekly income in his position as carer to Mr Gilbert in the United Kingdom amounts to approximately A$1250 per week. Mr Frankham gave evidence that he sends a good deal of this money, in the order of $1000 per week, to his son Scott, and that he believes his son uses this money to help support his mother, Carol Cunningham, and to pay for the mortgages on his own and his mother’s homes. Mr Frankham said that he uses the remaining money to support a basic lifestyle for himself in the United Kingdom.
36. Mr Frankham stated that his son meant everything to him, and that this was the reason he sent the majority of his income back to Australia. He gave evidence that he spoke to his son by telephone almost every day, and that he did not care for his own comfort, but made his son his only priority in life. He further stated that, regardless of the outcome of his application, he intends to continue to support his son both financially and emotionally, but took particular trouble to stress that given his close relationship with his son his emotional support would be restricted if he could not return to Australia.
37. Mr Frankham said that he deeply regrets the actions that led to both his convictions for shoplifting and the more serious conviction for possession of a controlled substance. He expressed his sincere wish to become a productive member of the Australian community, and that should he be successful in his present application, he intended to undertake the work offered to him by his former employer, Mr Ken Bardolph of Adelaide Family Care, as a carer to elderly people within the South Australian community.
Evidence of Scott Frankham
38. In his witness statement (exhibit A7), and in oral evidence before me, Scott Frankham stated that his parents had separated when he was eighteen months old, and that at this time his mother became his primary carer. Nevertheless, he said that his father and he had always had a very close relationship. He stated that when his mother moved him to Australia in 1989, at the age of eleven, he became very upset at the prospect of being separated from his father.
39. Following his arrival in Australia, Scott Frankham said that he and his father had remained in constant contact, and that he had returned to the United Kingdom several times to see his father. He confirmed that his father had visited Australia numerous times between 1989 and 1994, and that during the times he was not in Australia between 1989 and 1994 his father had telephoned him almost every day. He also confirmed that his father’s 1994 visit to Australia became prolonged, and that during this time he became very close to his father, and that his father’s involvement in supporting his participation in his local hockey and archery clubs made him feel that he was the central focus of his father’s life.
40. Scott Frankham consistently emphasised his strong relationship with his father, referring to their connection as like that of a “best friend”. He referred to the idea of his father returning to Australia as being equivalent to the return of one half of his family, as he has no other family aside from his mother.
41. Scott Frankham stated that he felt his close relationship with his father was heightened by his negative relationship with his step-father, Mr Michael Cunningham, who he referred to as “an appalling role model”. Further, his father’s absence from his life has been hard to deal with in recent years in light of an anxiety disorder from which he suffers. He indicated that this anxiety disorder may have been aggravated by his use of recreational drugs such as marijuana during his teenage years. Scott Frankham indicated that his use of marijuana was a practice which his mother was strongly opposed to, and that it had caused some friction between his parents as his mother felt his father was not vocal enough in his own opposition to his use of the drug.
42. Scott Frankham confirmed the evidence of Mr Frankham regarding the amounts of money (approximately A$1000), which Mr Frankham sends to his son each week. He further stated that he uses this money to pay the mortgages he holds over his own and his mother’s homes, and further to support himself, his mother and his partner, Ms Avril Frankham.
43. When questioned as to his present and prospective opportunity to visit his father in the United Kingdom, Scott Frankham said that in the past few years and into the foreseeable future he would have little opportunity to visit his father in England due to work commitments. He said that in 2003 he had been offered the position of manager with a new retail chain store selling fantasy games, and that the survival of the business had largely depended on his input and commitment to the success of the store.
44. In cross-examination Scott Frankham stated that he had not given much thought to relocating to England should his father’s visa application be unsuccessful. He said that he is buying his own home and his mother’s home with help from his father. He said that he is very settled in Australia and has a girlfriend and a good job, and that it would be extremely difficult for him to relocate to the United Kingdom. He added that it would be as painful to leave Australia as it would be to stay, as he would have to leave his mother and the life he has made for himself in Australia. He said that he was aware that his mother has no intention of returning to the United Kingdom. He stated that his family is small, and he would like them all to be able to remain together. He said that he considers himself to be an Australian, and that he has been here since he was eleven years old and that Australia is his home. His assessment was that there was less than a 30 per cent likelihood that he would relocate to the United Kingdom if his father’s application was unsuccessful.
45. Scott Frankham also admitted in cross-examination that he had not visited his father in the United Kingdom since his departure in 2002, despite maintaining an income which the respondent suggested was more than sufficient to allow him to do so. He was then asked again why, with leave entitlements of six weeks per year and an annual income of $70,000, he had not visited his father in the United Kingdom. Scott Frankham said that while his annual income was approximately $70,000, he also had a number of significant drains on this money. He highlighted the expense of his legal fees, and the costs of the mortgages over his home and his mother’s home. He further explained that he had not returned to the United Kingdom but said that this was due to work commitments, other pressing responsibilities at home, such as caring for his mother, his partner and his dogs and, completing home renovations and the cost involved.
Evidence of Carol Cunningham
46. In her witness statement (exhibit A2) and oral evidence, Mrs Cunningham confirmed that Scott lived with her after she and Mr Frankham were divorced, but said that Mr Frankham saw Scott all the time and doted on him. After Mrs Cunningham and her husband moved to Hastings, which was further away from Mr Frankham, Scott saw Mr Frankham every weekend, and Mr Frankham telephoned Scott almost every day. She said that she moved with her son and second husband to Australia in 1987 because she felt Australia offered a better opportunity to Scott. She said that Mr Frankham and Scott were very upset at the prospect of being separated, but that Mr Frankham agreed because he realised Australia was a better place for his son.
47. Mrs Cunningham’s evidence confirms that Mr Frankham and Scott have maintained a very close relationship, through Mr Frankham remaining in constant contact with his son via telephone and visiting Australia on several occasions throughout 1991 to 1994 and staying with her and Scott while on these visits. She also confirmed that Scott Frankham also returned to England to visit his father on a number of occasions, and that when Mr Frankham was in Australia from 1994 onwards, he and his son became very close and spent a great deal of time together. Mrs Cunningham stated her belief that it continues to be important that Mr Frankham be close by his family, and that Scott has always looked to his father for support. She stated her belief that Mr Frankham’s life revolves around their son.
48. Mrs Cunningham’s witness statement notes that in 1996 Mr Frankham began experiencing difficulties with his visa, and that as a result she agreed to sponsor him in his application for a parent visa. She goes on to say that she subsequently withdrew her sponsorship following a disagreement between herself and Mr Frankham about the handling of their son’s decision to begin smoking marijuana. She says she felt at the time that Mr Frankham was not being strict enough with their son, and “in a moment of anger … wrote to the Department of Immigration withdrawing my sponsorship” (exhibit A2, paragraph 17), but later forgot she had done this. She says that she did not intend Mr Frankham to be forced to leave Australia, and states her regret at her actions and relief that they did not cause Mr Frankham to be removed from the country. She says that in hindsight, she believes that if Mr Frankham had not been a part of her son’s daily life during that period that “Scott may have gone completely off of the rails and become involved with a really bad crowd” (exhibit A2, paragraph 20).
49. Mrs Cunningham said in her statement that she was surprised when she was told by Mr Frankham that he had been charged with and was guilty of producing cannabis, as this was out of character for him. She had always known him to be a law-abiding and community-spirited person, who would go out of his way for others.
50. Mrs Cunningham’s statement concludes by saying that although Mr Frankham and her son maintained daily contact over the telephone, she believes her son is struggling without his father close by, particularly in light of his anxiety disorder. She expressed concern over what would become of her son in the event that something happened to her and Mr Frankham could not come to Australia to be with him.
Consideration of Exercise of Discretion
51. Mr Warren, counsel for the applicant, submitted that the discretion under s 501(1) of the Act should be exercised in Mr Frankham’s favour, and that his visa should be granted. In considering this issue, I must take into account Ministerial Direction No. 21 as a guide to making my decision. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall consider the relevant considerations in the Direction in turn.
52. The three primary considerations in Direction No. 21 are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
53. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
54. Seriousness and Nature of the Conduct. The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5 of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. This list of examples includes both the production of illicit drugs and theft. However, the reference is to “serious theft”, and I consider that the conduct which resulted in the applicant receiving a conviction for theft does not satisfy the description as set out in paragraph 2.6(l) of the Direction.
55. The conviction for production of cannabis is, however, a serious offence, and in assessing the circumstances of this offence it is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction). In this regard, the sentence of imprisonment was not insignificant, but was suspended. The sentencing remarks by the Judge at the time of the applicant’s conviction indicated that the sentence imposed was reduced by 25 per cent because of the plea of guilty, and that significant contributing factors to the sentence being suspended were Mr Frankham’s age, prior good character, and his dedication to the twenty-four hour care he had been providing to Mrs Helman.
56. Counsel for the respondent, Mr Kennedy, submitted that while Mr Frankham’s convictions are not for crimes of violence, the conviction for possession of a controlled substance was nevertheless one related to drugs and, furthermore, involved a minor who falls within a particularly vulnerable group of the community (see paragraph 2.4 of the Direction). I note that this offence falls within the category of offences which the Government regards as very serious. The production of cannabis is conduct which is likely to result in undermining the health and safety of young people, who are regarded as the more vulnerable members of the Australian community. Mr Frankham’s conduct was all the more serious because of the involvement of Oliver, and because of Mr Frankham’s action in cloning so many cannabis plants after the theft of only six plants.
57. Mr Kennedy also pointed out that during police questioning following Mr Frankham’s arrest for cannabis production, he told the police that he was a cannabis user, and that the sentencing Judge made reference to that during sentencing. However, in his evidence in these proceedings, Mr Frankham denied having ever taken drugs and declared that he “hated drugs”. This contradiction is also of concern. Counsel for Mr Frankham, Mr Warren, provided details as to the penalties that applied as at 2001/2002 for the production of cannabis. The penalty for growing fewer than twenty plants at the relevant time was a fine not exceeding $2000 or imprisonment for two years, or both. There was also some evidence that Mr Frankham had a degree of awareness about lesser penalties for production of a specified number of plants if they were for personal use. I find that it is likely that this knowledge induced him to lie to the police, and to say that the pants in question were for his personal use in an attempt to limit the degree of seriousness of the charges to be laid against him. This reflects very badly on Mr Frankham.
58. Nevertheless, and whilst certain of Mr Frankham’s explanations in his evidence before me were not convincing, the following aspects were not contradicted by any earlier inconsistent statements by Mr Frankham or by any other witness, and I accept that:
(a) the cannabis production scheme was instigated by Mr Frankham’s brother;
(b)the extent of Mr Frankham’s initial involvement in assisting his brother in the establishment of the scheme was limited to driving his brother to various hydroponics stores;
(c)this action was not undertaken with a view to profiting from such a scheme himself;
(d)his direct involvement in the scheme was born out of a misguided but strong and understandable desire to procure his brother’s departure from Australia, as a means to alleviate the stress his brother’s presence was causing his son;
(e)the surviving cloned plants had not been moved from the garage to be grown hydroponically, and may have died; and
(f)Oliver Floubisher (and to a limited extent, his young brother) only became involved in the somewhat extenuating circumstances explained by Mr Frankham, as set out earlier in these reasons, and then only relatively late in the piece.
59. It is also necessary to consider the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a) of the Direction). In the present matter, Mr Frankham’s criminal record is irregular and minor in nature, save for the conviction for the production of cannabis. Furthermore, his crimes are not of a nature that could be called repugnant (being the further criterion referred to in paragraph 2.7 (b)).
60. It is also necessary to take into account any relevant mitigating factors (paragraph 2.8(a)). In the present matter, apart from the factors relevant to the cannabis offence to which I referred in paragraph 55 above, there are a number of mitigating factors which include Mr Frankham’s age, his remorse for his past actions, and his consistent employment history in the aged care industry.
61. Mr Kennedy submitted that although some hardship would be experienced by Scott Frankham should the applicant’s visa be denied, this hardship was not as serious as it might otherwise be. Scott Frankham gave evidence that he is a British citizen and knows of no impediment to his travelling to the United Kingdom to visit his father. Mr Kennedy submitted that Scott Frankham was both financially and practically capable of visiting his father, and further noted that, as admitted under cross examination, his failure to do so since his father’s return to the United Kingdom reveals that visiting his father is a lower priority than his other commitments in Australia.
62. As against these matters, counsel for the applicant, Mr Warren, submitted that the failure of Scott Frankham to visit his father in the United Kingdom does not reflect absolutely on the extent of the relationship between father and son. I accept that Scott Frankham’s financial, work and relationship commitments have taken priority over visiting his father in the United Kingdom. There is substantial evidence that the bond between Mr Frankham and his son Scott is particularly close, and further evidence that in spite of the difficulties they have faced by their physical separation, they have sought to maintain this close relationship over Scott Frankham’s entire life.
63. Likelihood of Repetition of Conduct, and Risk of Recidivism. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). Relevant factors are listed in paragraph 2.10 of the Direction. The number and frequency of Mr Frankham’s previous convictions and the fact that he committed further offences notwithstanding the warning by DIMIA that it was considering not renewing his bridging visa because of his recent conviction for producing a controlled substance are relevant factors which count against Mr Frankham. Counsel for the respondent submitted that there was a moderate risk of recidivism, and in exemplifying this risk highlighted the applicant’s awareness of the working conditions of his visa and his having acted in breach of these conditions by undertaking paid carer duties for Mrs Helman, as well as the two shoplifting offences which occurred when he knew that DIMIA were actively considering his immigration status.
64. As against these matters, with the exception of the offence involving the production of cannabis, there is force in Mr Warren’s argument that although Mr Frankham had a number of convictions, they were all of a relatively minor and unrelated nature. Mr Frankham gave evidence that his feelings of anxiety and depression arising from the rape of his niece by a gang of youths in Zimbabwe, his approaching trial for the cannabis production and the possibility of his removal from Australia, contributed to his committing the supermarket thefts. He obtained appropriate treatment from a psychologist following these offences, and her report, which is dated 7 May 2002, included a positive prognosis.
65. I further note the applicant’s other offending has been minor in nature and importantly, that these other offences are not connected to the cannabis production offence. The applicant has not offended again, and I therefore find that in all of the circumstances, the risk of recidivism is low.
66. A further relevant consideration is the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make. It appears that since his return to the United Kingdom Mr Frankham has continued to care for elderly members of the community, and has had no further dealings with authorities, save for a caution in regard to an incident at his local shopping centre. References attesting to his ability and willingness to help others are in evidence, including a letter from an Adelaide agency confirming that it would re-employ Mr Frankham if he returns to Australia. I accept that should he return to Australia he will continue his employment in the aged care profession, a means of employment capable of offering a positive contribution to the Australian Community.
67. General Deterrence. The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the refusal of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). There is no evidence before me that this would be the case, and I do not think that this factor is material in the present matter.
Second Primary Consideration – Expectations of the Australian Community
68. This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
69. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr Kennedy drew attention to the pattern of the applicant’s offending, and the matters referred to in paragraphs 56 and 57 above. He submitted that the Australian community would expect to be protected against offending of the kind committed by the applicant.
70. In the present matter, Mr Frankham‘s offences are at the lower end of the scale of criminality. He acknowledged repeatedly during the hearing that his decision to become associated with his brother’s cannabis hydroponics scheme was imprudent, but as I have said, this decision was likely to have been partly the result of his strong desire to protect his son from the conflict that had arisen between his son and his brother. I have also referred to other circumstances relevant to the cannabis offence and the remainder of Mr Frankham’s criminal conduct. In all of the circumstances, I am inclined to the view that the expectations of the Australian community would lead to the conclusion that the visa should be granted.
Third Primary Consideration – Best Interests of a Child or Children
71. The applicant has no children under the age of eighteen, and this consideration is not relevant in the present matter.
Other Considerations
72. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
73. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the generally worded discretion conferred on the Minister by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant: see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326). It appears that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 now includes the word “generally”, whereas previously the corresponding paragraph of Direction No. 17 omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
74. In my opinion, it follows from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi) that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
75. The first of the other relevant considerations is “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community” (paragraph 2.17(a)). It is also appropriate to refer at this point to paragraph 2.17(c) of the Direction. This refers to the degree of hardship that would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere.
76. Mr Frankham’s only close family is his son Scott Frankham, and I find that Scott has an unusually close and special relationship with his father. Scott Frankham has lived in Australia for the majority of his life. He considers himself an Australian, and his mother and his partner both live in Australia. I further find that Scott Frankham relies heavily on his father for emotional and financial support, but that it is most likely that Scott Frankham will continue to reside in Australia, even though he has apparently not entirely ruled out the possibility of returning to England if his father’s visa is not granted. Scott Frankham’s mother and partner both live in Australia, and I find that a decision to refuse the visa would be disruptive to Mr Frankham’s immediate family, namely his son. It is clear that Scott Frankham does not wish to return to the United Kingdom, since this would entail giving up his current employment and separating from his mother, and possibly his partner.
77. Counsel for the respondent drew attention to the composition of Mr Frankham’s family in the Untied Kingdom, being a further factor referred to in paragraph 2.17(d). Mr Frankham has a number of brothers and other extended family in the United Kingdom. However, he appears to have had very little contact with his extended family, aside from his brother Michael Frankham, since returning to the United Kingdom, and I find that his son’s success and happiness, and the contribution that the applicant can make to that, forms the central purpose of his life.
78. In the context of whether there was evidence of rehabilitation or any recent good conduct (paragraph 2.17(h)), I refer to the matters referred to in paragraphs 65 and 66, and the report from the psychologist to which I referred in paragraph 64 above.
Summary and Conclusion
79. I am required by paragraph 2.2 of Direction No. 21 to have due regard to the importance placed by the Government on the three primary considerations, but also to adopt a balancing process which takes into account all relevant considerations. The first primary consideration would point in favour of refusing to grant the visa, because of the visa applicant’s offending and the seriousness of the conviction for cannabis production. However, I have referred above to the extenuating circumstances in which this offence occurred, and not all of the aspects of this first primary consideration weigh heavily against the applicant. Further, for the reasons I have mentioned, I am inclined to think that the second primary consideration would not support a refusal of the visa, and that various of the “other considerations” are important in the present matter, and are in the applicant’s favour. After considering all of the evidence before me, I have decided that it is appropriate in the present matter to exercise the discretion under s 501(1) in the applicant’s favour.
80. I should, however, record that I regard this matter as a borderline case. Mr Frankham disregarded the work restriction on his visitor’s visa. He has committed several offences during the time he has spent in Australia, including one serious offence. He should understand that if he commits any future offence, it is likely that DIMIA will make a fresh assessment of his situation with a view to considering cancelling any visa issued to him as a result of this decision. I cannot, of course, fetter the exercise of discretion by a future decision-maker. However, in view of the concerns I have expressed, Mr Frankham should not expect to receive a favourable exercise of discretion if he should ever offend again, however remorseful he might profess to be. I suggest that when his advisers inform him of the outcome of these proceedings they should draw these comments to his attention, and emphasise their significance.
Decision
81. I set aside the decision under review and substitute therefor a decision that the discretion under s 501(1) of the Migration Act 1958 to refuse to grant a parent (AX-103) visa to the applicant not be exercised.
I certify that the 81 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
J. MacIntyre AssociateDate/s of Hearing 15 and 16 March 2005
Date of Decision 2 August 2005
Counsel for the Applicant Mr J Warren
Solicitor for the Applicant Hyams and Associates
Counsel for the Respondent Mr Marten Kennedy
Solicitor for the Respondent Australian Government Solicitor
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