Fryer and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 1166
•8 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2004/26
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES ROBERT FRYER Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date8 November 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review to refuse the application made by James Robert Fryer for a bridging visa, pursuant to the Migration Act 1958.
.............SIGNED.................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – bridging visa – applicant not of good character – unacceptable risk to Australian public – decision to refuse visa affirmed
Immigration Act 1968: s102, 109, 501(1)(6) and (7)
REASONS FOR DECISION
Deputy President Don Muller 1. James Robert Fryer is a citizen of New Zealand who has been living in Australia since he first entered Australia on 31 May 1997.
2. At the time Mr. Fryer entered Australia on 31 May 1997, he was not required to make application for an Australian visa. He was automatically granted a Subclass TY444 Special Category Visa (444 visa), which did not involve any paper work and which he knew nothing about. He assumed that New Zealand citizens could come and go from New Zealand to Australia as they pleased.
3. On 4 September 2004, Mr. Fryer’s visa was cancelled. He was arrested on the same day and placed in immigration detention at Darwin Correctional Centre.
4. Mr. Fryer does not wish to return to New Zealand.
5. The reason given for the cancellation of Mr. Fryer’s 444 visa was that he failed, on his return to Australia from a holiday in New Zealand in March/April 2002, to reveal on his passenger card the fact that he had been convicted of criminal offences in New Zealand in 1988. Section 102 of the Immigration Act 1958 requires non-citizens to fill in their passenger cards correctly. Section 109 provides for the cancellation of a visa if the information is incorrect.
6. On 7 September 2004, Mr. Fryer lodged an application for review with the Migration Review Tribunal (MRT).
7. On 7 September 2004, Mr. Fryer also lodged an application for a Bridging Visa E Subclass 050 (BVE) in order to be released from prison, pending the outcome of his appeal to the MRT.
8. On 9 September 2004, Mr. Fryer’s application for a BVE was refused.
9. Mr. Fryer seeks a review by this Tribunal of the decision to refuse the BVE.
10. The reasons given for the refusal of the BVE were that:
(a)Mr. Fryer was deemed to have a substantial criminal record, and not to pass the character test set out in s.501 of the Act;
(b)His crimes were of a serious nature. The Australian community would expect his visa application to be refused;
(c)The Australian community expects non-citizens to obey Australian laws while in Australia.
11. Section 501 of the Act allows for the refusal of a visa on the ground that the Applicant does not pass the character test set out in subsection 501(6).
12. The hearing of this review was conducted initially by video and telephone link, between Brisbane and Darwin on 19 October 2004, and then over two days in a hearing room in Darwin on the 4th and 5th of November 2004. Mr. Fryer was represented throughout the proceedings by his solicitor, Mr. Yuen. The Respondent was represented by its solicitors, Ms. Bianchi on 19 October 2004 and by Ms. Bennett on 4 and 5 November 2004.
13. The material placed before the Tribunal consisted of:
(a)The G-Documents;
(b)Statutory Declarations, plus diary notes of the Applicant, James Robert Fryer;
(c)Statutory declarations of former employers of Mr. Fryer:
(i)Patricia Anne White, and
(ii)Andrew George Reeves;
(d)Statements and Statutory Declarations from:
(i)Adrienne Veronica Frost (former partner of Mr. fryer for 6 years);
(ii)David Charles Kemp (former workmate of Mr. Fryer);
(iii)Allan Jeffrey Doddrell (friend of Ms. Frost);
(iv)Dr. Carmen Gutierrez (General Practitioner who examined Ms. Frost on two occasions);
(v)Sgt Wendy Schultz of the Northern Territory police who was involved in processing a Domestic Violence Order (DVO) against Mr. Fryer and in making certain recommendations about bail in relation to three alleged breaches of the Order).
(e)A copy of the passenger card filled in by Mr. Fryer when he first entered Australia on 31 May 1997.
14. The Tribunal heard oral evidence from Mr. Fryer, Mrs. White, Mr. Reeves, Ms. Frost, Mr. Doddrell and Mr. Kemp (by telephone from Western Australia).
15. There is no dispute about the following matters and I find as follows:
(a)Mr. Fryer was born in New Zealand on 28 May 1967;
(b)Mr. Fryer has the following criminal record in New Zealand:
On 12 August 1988, he was sentenced in relation to two offences which he committed on 30 October 1987. The offences and punishment were, respectively:
(i)“indecently assaults female under 12”; imprisonment 3 years
(ii)“sexual intercourse girl under 12”; imprisonment 5 years (concurrent)(the two offences involved the same girl)
On 15 October 1996, “cultivate cannabis, alcohol/drug counsel, supervision 1 year”.
(c)Mr. Fryer was released from prison after serving three years, having been recommended for an early release program.
(d)Mr. Fryer is a highly skilled welder and boiler maker.
(e)Mr. Fryer first met Ms. Frost in New Zealand in about 1996, when they were both working on dairy farms.
(f)At the time they met, Ms. Frost had two young children, a girl and a boy.
(g)By about May 1997, their relationship had grown closer and they decided to start a life together in Australia.
(h)Mr. Fryer, Ms. Frost and Ms. Frost’s two children arrived in Australia together on 31 May 1997.
(i)Upon arrival in Australia, Mr. Fryer filled in an incoming passenger card on which he was asked if he had any criminal convictions. He ticked the box which indicated that he had no criminal convictions. However, the language used in the question was so convoluted and complicated that it would be wrong of the Tribunal to draw any inference from this incident adverse to Mr. Fryer.
(j)Mr. Fryer and Ms. Frost initially worked for just under two years on dairy farms in eastern Victoria. It was there that they met Mr. and Mrs. White. The Whites owned a farm in Victoria. The Whites later purchased a cattle property at Mr. Kepler (about 100 km south of Darwin).
(k)For about two years, from late 1998 to early 2000, Mr. Fryer and Ms. Frost travelled around Australia in a large motor home, stopping to work at various locations from time to time. Mr. Fryer had become a very proficient welder and skilled general handy man.
(l)Mr. Fryer and Ms. Frost decided to settle permanently in the Darwin area in 2000.
(m)They initially lived in their motor home at the White’s Mt. Kepler Station property. Mr. Fryer did maintenance and welding work at the property for Mr. and Mrs. White.
(n)In March 2001, Mr. Fryer obtained a job with Darwin Inspection and Testing Services (DITS) as a welding and coating inspector on the oil rigs in the Timor Sea. He was required to be away from Darwin for lengthy periods, interspersed with very short periods back in Darwin. He was a highly valued employee and was paid a salary in excess of $80,000 p.a.
(o)After Mr. Fryer obtained his position with DITS, Ms. Frost moved the motor home to a caravan park on the southern outskirts of Darwin. She then obtained a job at a recreation reserve which allowed her to park the motor home on the reserve, free of rent and electricity charges in exchange for general maintenance work.
(p)In late 2001, Mr. Fryer and Ms. Frost obtained a bank loan to purchase a property of about 160 acres at Livingstone Road, near Berry Springs (about 40 km south of Darwin). They moved the motor home onto the property, with the intention of living in the motor home until a house was built.
(q)Mr. Fryer was extremely well regarded by his employers. He has been described as hardworking, diligent, highly competent, honest and reliable.
(r)Mr. Fryer has also been involved in community work. He has been a volunteer fire-fighter. He has used his welding skills at the local school and playground.
(s)On 16 March 2002, Mr. Fryer flew to New Zealand to do a welding course designed to upgrade his trade qualifications and skills.
(t)On 4 April 2002, Mr. Fryer returned to Australia. Upon entry he was required to complete an incoming passenger’s card. The card completed by Mr. Fryer shows that Mr. Fryer gave his Australian address as “Timor Sea NT”. In answer to the question, “If you are NOT an Australian citizen: Do you have any criminal convictions?”. Mr. Fryer ticked the space alongside “No.”.
(u)On 25 November 2003, Mr. Fryer and Ms. Frost had a serious disagreement which culminated in Ms. Frost terminating her marriage-like relationship with Mr. Fryer. Since that time their residual relationship has gone from bad to worse.
(v)In February 2004, a Magistrate of the Northern Territory issued a DVO restraining Mr. Fryer from going onto the Livingstone Road property without a police escort and from doing various other acts against the person or property of Ms. Frost and her two children. The DVO was for 12 months.
(w)Mr. Fryer and Ms. Frost are now involved in a bitter dispute about the division of their assets.
(x)As a by-product of this “matrimonial” dispute, the Australian immigration authorities became aware of Mr. Fryer’s criminal history and the fact that it had not been revealed upon entry into Australia.
16. There is no doubt that Mr. Fryer has a “substantial criminal record” within the meaning of that term in s.501(7) of the Act. He therefore does not pass the “character test” defined in sub-paragraph s.501(6). The decision to refuse to grant Mr. Fryer a bridging visa is justified under s.501(1) because Mr. Fryer does not pass the character test.
17. The sole focus of this review is the question whether, notwithstanding the decision to refuse the bridging visa was justified on the grounds of failure to pass the character test, Mr. Fryer should be given the benefit of the discretion exercisable under s.501.
18. In assessing whether or not the discretion should be exercised in Mr. Fryer’s favour, the Tribunal is required to consider the matters set out in the Minister’s Direction 21, issued pursuant to s.499 of the Act. Direction 21 contains a large number of matters for consideration but in Mr. Fryer’s case there are only two which are relevant:
(a)The protection of members of the Australian community, and
(b)The expectations of the Australian community.
19. Mr. Fryer has not been convicted of any offences in Australia.
20. Ms. Frost gave oral evidence and was cross-examined. She was in the witness box for nearly a whole day. She affirmed the matters contained in her statutory declarations which she had made in support of the DVO. There were many parts of her evidence which appeared to bring back painful memories for her. Nevertheless, I was impressed by her. I do not believe that she is unduly hysterical, nor that she has cunningly colluded with other witnesses to cause the deportation of Mr. Fryer for the sole purpose of getting her hands on all of the property acquired by her and Mr. Fryer during their defacto relationship.
21. Much of Ms. Frost’s evidence was probably more relevant to her property dispute, or to a session with a counsellor. However, she did paint a picture of Mr. Fryer which indicated that he is not of good character, no matter how hard he has worked for his various employers.
22. Of greater relevance to this review are the claims by Ms. Frost that she has spent about six years putting up with Mr. Fryer’s violent outbursts during which he has physically and mentally abused her and her children, he has drunk to excess and he has smoked marihuana on a regular basis.
23. In particular, Ms. Frost claims that Mr. Fryer has:
(a)Threatened to kill her on numerous occasions;
(b)Held a knife to her throat;
(c)Threatened to kill a male friend of hers – Mr. Doddrell who was at the Livingstone property on 1 March 2004;
(d)Held her down and threatened to bash her face in;
(e)Caused bruising and lacerations needing medical attention;
(f)Thrown a chair at her head, resulting in an injury needing medical attention;
(g)Threatened to kill her if she reported any of his physical assaults to the police;
(h)Breached the DVO on three occasions.
(i)Inappropriately touched her daughter on the breasts and bottom.
24. Mr. Fryer gave evidence in which he denied the claims by Ms. Frost that he had ever threatened to kill her. He denied that he had ever physically assaulted her. He claimed that the chair incident occurred accidentally when he threw a chair backwards out of a doorway. He claimed that he treated Ms. Frost’s children as his own, and that he never laid a hand on Ms. Frost’s daughter. He denied that he breached the DVO without Ms. Frost’s consent.
25. He said that when he visited the Livingstone Road property on 1 March 2004 it was by previous arrangement to pick up a dog. He denied threatening to kill Mr. Doddrell.
26. Mr. Fryer denied that he smoked marihuana on a regular basis. He said that on an occasion when he tested positive to marihuana during a random test in association with his oil rig job, it must have been because he unwittingly ate a cake laced with marihuana.
27. The tenor of Mr. Fryer’s evidence was that he has been a model citizen. He has worked hard to achieve a dream of eventually owning a farm of his own. He has been a good parent who has interacted in a perfectly appropriate manner with Ms. Frost’s children. He is the victim of a conspiracy to assassinate his character to have him deported to New Zealand, for the sole purpose of causing him to forfeit his right to his share of the jointly acquired property.
28. Mrs. White and Mr. Reeves both gave glowing accounts of Mr. Fryer’s work ethic, his decency and his honesty. They did not accept that he was a violent person. They did not accept that he drank to excess. They had both been to visit Mr. Fryer and Ms. Frost at their motor home on a few occasions. They never saw anything which caused them any concern.
29. However, Mr. Kemp gave evidence that on one evening in March 2002, he attended the motor home of Mr. Fryer and Ms. Frost as an invited guest for dinner. Mr. Kemp was a workmate of Mr. Fryer’s. He too was a welding inspector. He did not know Ms. Frost particularly well. Mr. Kemp gave evidence that he had been having a social drink in the motor home when Mr. Fryer ran into the bus with a hunting knife in his hand. He described what happened thus:
“Jamie said ‘I am going to cut you up you bitch’ – the kids were terrified – she said ‘don’t do it in front of the kids’ – they went into the bedroom at the end of the bus – I was shocked – I thought I had better do nothing – I told the kids to be quiet – Adrienne seemed to have it under control – I thought if I stepped in I would be threatened as well – she talked him down, within about five minutes it was defused.”
30. Mr. Doddrell gave evidence that he went to the Livingstone Road property on the evening of 1 March 2004 to give Ms. Frost a hand feeding the animals and to clean up. This was during the currency of the DVO. He said that he and Ms. Frost were sitting on the back of his utility truck when Mr. Fryer drove up to within about two metres of where they were sitting and kept his lights shining straight at them. He said that Ms. Frost went to talk to Mr. Fryer for a few minutes. Then Mr. Fryer backed up about 10 metres, got out of his vehicle, and walked past Mr. Doddrell’s vehicle to a shed on the property. Mr. Doddrell said that Ms. Frost said that she feared for his safety and asked him to leave. He left the property about 10 minutes later but rang her at about 10.45pm to see if she was safe. She said she was.
31. Ms. Frost’s claims of being physically injured on the days that she said she was, are corroborated by the report of Dr. Gutierrez.
32. It is common ground between the parties that on or about 16 March 2004, Mr. Fryer left Darwin and travelled to Tennant Creek and then to Queensland where he remained until mid-June. On his return to Darwin, his dispute with Ms. Frost over the division of their property was re-ignited.
33. Mr. Fryer has been receiving medical treatment for depression and behavioural problems since 2002. There are two medical reports in the G-Documents. Dr. L.J. Crompton reported as follows on 7 September 2004:
“This man was treated for depression and behaviour disorders for a long time during 2002 & 2003 by Dr Best. His condition was serious and he made at least one suicide attempt when things were going badly for him during that time. He was referred to Dr P Marcou for specialist psychiatric treatment, but was reluctant to attend. However I understand he did attend at least once.
He was prescribed a sleeping tablet, stilnox, and provided with the antidepressant aropax. He was reluctant to take aropax. He is recorded as drinking excessively during this time; testing positive on a drug screen, and being inclined to aggressive behaviour. The suicide attempt may have been aggression directed towards himself.
His behaviour towards his wife resulted in an AVO being taken against him, and on one consultation with Dr Best he left abruptly when a consultation did not proceed to his satisfaction. He has not been seen here recently, but his behaviour seems to have been unpredictable and dangerous at that time. I would not like to comment on his current state of mind with the information I have here, but would think a cautious approach would be prudent.”
Dr. Petros Markou (psychiatrist) reported as follows on 7 September 2004:
“I have obtained written authorisation to prepare this statement.
This is to certify that Mr Jamie Fryer has been a patient of mine since June 2002. During that time, he has been treated primarily for depression, and as such he has been on antidepressants for much of this time. He remains on the antidepressant Cipramil, and was last seen by me in July 2004. His mental state at that time was somewhat precarious and my advice at that time was for him to continue to take his antidepressant medication.
It is likely that should he be incarcerated, that this will have a significantly detrimental effect on his mental state and is likely to worsen his pre-existing depressive condition. My view is that he does not present a significant danger to the community and if there are other means of detaining him without actual imprisonment, then this would be preferable.”
34. With respect to Mr Fryer’s criminal history in New Zealand, Mr Fryer provided the Tribunal with an explanation in a statutory declaration titled ‘further statutory declaration’ dated 8th of October 2004. Mr Fryer stated that:
‘the convictions were in 1988 when I was 21 years old but relate to events that first began when I was only 18 years old. That was when I first met a woman called Daphne Ni-Heta, a person of Maori decent. She was a single mother with four children. Daphne was an evil person. She has been previously convicted of theft, robbery, drugs and she was also an alcoholic. She was a member of two gangs called “Mongrel Mob” and “Black Power Affiliation”. Daphne had spent time in prison for those offences. I had no criminal record with the NZ police even though I had a relationship with her’[1].
35. In a similar fashion, he continued to state:
‘I did not physically abuse Andrena like her mother and was often there to comfort her when she was beaten by her mother. Since I was the only other older person in the house it was natural for her to seek comfort from me. I have to confess now that on some occasions because I was spaced out on alcohol and cannabis I did cross the line from comforting her to having a physical relationship with her myself. However, it was never forced on Andrena because despite her young age she was already sexually experienced. I cannot even say that I initiated the relationship. In reality I was only 6 years older than her. I was barely mature myself. Daphne must have known that I was also having a physical relationship with her daughter but she did not complain or stop me’[2].
36. In addition to the above statements, Mr Fryer explained that:
‘Once Daphne came to prison to visit me bringing my biological daughter with her. She said she would harm the child if I did not plead guilt to the charges. She also threatened to harm my father. She just wanted to punish me for leaving her for someone else. Out of fear for the safety of my father and my daughter I decided to plead guilty to the charges without going through a trial. Knowing Daphne’s background and what she was capable of, I believed she would carry out her threats. I was sentenced to five years imprisonment for unlawful sexual intercourse with a girl under 12 years and three years respectively for indecent assault of the same girl. I served three years of prison in total’[3].
37. Mr. Fryer has admitted that he had an inappropriate criminal relationship with a girl under the age of 12 in New Zealand. However, he has undercut any suggestion that he was, or is, remorseful by going on to say that he would not have pleaded guilty if he had not been threatened or blackmailed into doing so.
38. I accept the evidence of Ms. Frost, and the corroborating evidence of Dr. Gutierrez, Mr. Kemp and Mr. Doddrell. I find that Mr. Fryer has been leading virtually two lives. He has been a model citizen in public and in his work environment. He has been a violent bully in his private life.
39. I find that he is psychiatrically unstable and that he represents an unacceptable physical risk to Ms. Frost, her children and to any new partner that she may have.
40. I find that the discretion allowed for under s.501 should not be exercised in Mr. Fryer’s favour.
41. The decision to refuse a bridging visa is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 19.10.04, 4, 5.11.04
Date of Decision 8 November 2004
Solicitor for the Applicant Mr. C. Yuen
Solicitor for the Respondent Clayton Utz
[1] Exhibit 2 at paragraph 10.
[2] Exhibit 2 at paragraphs 13-16.
[3] Exhibit 2 at paragraphs 20-21.
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