Furlong and Minister for Immigration and Border Protection (Migration)

[2017] AATA 3014

Furlong and Minister for Immigration and Border Protection (Migration) [2017] AATA 3014 (21 December 2017)

Division:GENERAL DIVISION

File Number:           2017/6386

Re:Gavin Furlong

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:21 December 2017

Date of written reasons:        14 February 2018

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision under review and substitutes a decision that the visa application should not be refused on character grounds.

......................[Sgd]..................................................

Senior Member Britten-Jones

CATCHWORDS

MIGRATION – visa refusal – skilled-nominated visa – whether person passes the character test – consideration of “criminal” conduct at lower end of the spectrum – whether there is a risk of engaging in criminal conduct - whether discretion to refuse to grant a visa should be exercised – protection of the Australian community from criminal and other serious conduct – primary and other considerations under Ministerial Direction No. 65 – decision under review is set aside.

LEGISLATION

Migration Act 1958

CASES

Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499, Visa Refusal and Cancellation under s 501

REASONS FOR DECISION

Senior Member Britten-Jones

14 February 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish them with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The settled version of the said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

.........................[Sgd]...............................

Administrative Assistant

Dated: 14 February 2018

Date(s) of hearing:	20 & 21 December 2017
Advocate for the Applicant:	Mr B Kelleher
Solicitors for the Applicant:	Ward Keller Lawyers
Advocate for the Respondent:	Ms C Stokes
Solicitors for the Respondent:	Australian Government Solicitor

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. SENIOR MEMBER:  All right.  Well, look, I will give you my reasons now.  It will take me a little while just to read them out, and I will give you my decision at the end.

2. This is an application for a review of a decision to grant a visa under section 501(1) of the Migration Act 1958 (the Act).  The decision to refuse the visa was made by a delegate of the Minister on 3 October 2017.  Notice of the refusal provided that the applicant had failed to satisfy the Minister that he passed the character test, and that the particular ground relied upon was sub-paragraph 501(6)(d) which provides that in the event the person were allowed to enter or to remain in Australia there is a risk that the person would engage in criminal conduct. 

3. Then at the hearing for the review, the respondent’s representative advised that a further ground was relied upon, namely that contained within sub-paragraph 501(6)(c), which provides that having regard to either or both of the following, namely the person’s past and present criminal conduct, that the person is not of good character. 

4. The issues for consideration by the Tribunal are firstly whether the applicant passes the character test as defined in section 501(6) of the Act, and, second, if not, whether his visa application should be refused taking into account the relevant considerations in the Ministerial Direction No. 65, Visa refusal and cancellation under s 501, and revocation of a mandatory cancellation of a visa under section 501CA, which I will refer to as the Direction.  For the reasons that follow, I find that the applicant, Mr Furlong, does pass the character test as defined in section 501(6) of the Act, and I will set out my reasons as follows.

5. Firstly dealing with some background facts, the applicant is a citizen of the Republic of Ireland, who first entered Australia in 2010.  He lived in Darwin and had been working as a brick or block layer until he voluntarily departed Australia on 25 October 2017 due to the visa refusal decision.  Since coming to Australia, the applicant has participated significantly in community life by working, playing football and eight ball, and making numerous close friendships, including one with the woman who he has now married, who he met in 2012, and she gave oral evidence at the hearing.

6. The work history of the applicant is impressive.  He completed his secondary education in Ireland and then commenced a form of apprenticeship, and at the age of about 23 years old he started his own business in Ireland.  The applicant described how the economy deteriorated in Ireland and the work dried up, and he decided to leave and start afresh in Australia.  He had a best friend who had gone to Darwin, and it was for that reason that he chose Darwin for his new life. 

7. Whilst in Darwin he has never really been out of work.  He worked for various bricklayers for about three years or more, and has since then been mostly self-employed and started his own company in 2012.  There were numerous positive character references which were given in the form of statements, which were tendered to the Tribunal.  Amongst them included a letter from Paul Winter of Habitat who described the applicant as in the most of his jobs, being the lead bricklayer and that his work was precise and on time.

8. Mr Winter said that as a registered builder, he found this quality essential to the success of his company.  Mr Winter has known the applicant for some four years, and during that time he observed him improving his standing in the Darwin construction community, to the point of being the leading hand on all of his sites.  There were similarly positive endorsements from other colleagues and associates with whom the applicant has dealt. 

9. Another was Stephen Ferguson, for whom the applicant does a considerable amount of work.  He has known the applicant for the past six years and described him as a good friend and also a respectable contractor within the Darwin construction community. 

10. Further, he described him as one of the most dependable, conscientious, honest and hard-working people that he had worked with.  I will not go through all of the other references, but I note outside of the work area that there was a very positive reference given from the President of the Northern Territory Eight Ball Association, who described the applicant as exuding all the traits expected from members with regards to sportsmanship and the positive attitude towards the promotion of the game.

11. Another of the applicant’s interests is football, and he is a member of the Darwin Football Club, and has been since 2012, and is still playing in one of the older leagues.  In addition to playing, though, he participates as a member and a volunteer, and the applicant, himself, gave evidence about the sorts of fundraising activities involving sausage sizzles and children’s activities with bouncing castles and that each of the volunteers, including the applicant, would take it in turns to be involved with those sorts of activities so as to raise funds for the club and promote the club further to the community.

12. Whilst in Australia, the applicant has been convicted of offences arising from four separate incidents, three of which involved alcohol.  The first incident was when he was fined and convicted for disorderly conduct, and furnishing a false name and address to a police officer.  Those convictions were recorded in the Darwin Court of Summary Jurisdiction in March of 2013.  The applicant gave evidence that he was with his now-wife, and things became heated because they were going through a rocky time, and the police intervened to assist his then-partner, and the applicant took offence to this.

13. He had been drinking and he used foul language to the police, and was generally abusive.  He described himself back then as being a “smart-arse,” and he accepted that his behaviour was very poor, and he accepted in cross-examination that he not only refused to give a false name the first time, but that he continued to do so and he refused to give his real name and address at any time.  That incident reflects very poorly on the applicant.

14. The second incident involved traffic offences of driving whilst using a hand-held mobile phone, and driving a motor vehicle while unlicensed.  Again, he was fined and convicted in the Darwin Court of Summary Jurisdiction only a month later, in April of 2013.  It is of concern that the applicant was aware that his licence had expired, and indeed he had been driving unlicensed for some time.  Nevertheless, those offences are in the nature of traffic offences and the applicant has paid his price by the fines and having the convictions recorded.

15. The third incident is of a more serious nature and occurred in June of 2013.  The offences for which the applicant was charged and convicted included assault against a worker and failing to leave licensed premises.  The incident occurred at a hotel in Darwin where the applicant had been drinking for a significant period of time with a group of friends, including his current wife.  Mr Furlong, the applicant, said that someone had said something smart to his now-wife, and that a brawl had erupted, and the security officer stepped in and the applicant having had too much to drink took a swing at the security officer.

16. The applicant gave evidence with respect to the bar brawl in which he admitted candidly that he was the initial aggressor to the security guard and that that started the knock-on effect of the brawl, and the subsequent behaviour.  His evidence was very candid, although nevertheless this offence was not trifling, and whilst the security guard did not, it would appear, suffer any significant injury, nevertheless the offence did involve violence of a minor nature, I would say.

17. The next offence was the following year in May of 2014 when the applicant drove his vehicle whilst under the influence of alcohol, and drove in a manner dangerous to the public.  That involved a crash into a tree, and further, a crash into another vehicle.  Included in the offences charged was the offence of failing to stop or assist after a crash, and also once again failing to provide his name and address when required, and a further example of obscene and indecent language used with respect to the police authorities.

18. That is a more serious offence than the traffic offences or the disorderly conduct.  It is noted that the three most significant offences or incidents were fuelled by alcohol.  Mr Furlong gave evidence which was confirmed by his wife, that she had lost their baby to an ectopic pregnancy some time later in 2012, and he said that that did play a factor in terms of his conduct over 2013 and 2014, although he was quick to point out that it did not justify his behaviour, and he did not excuse himself on that ground alone.

19. He said that he looks back on himself in that 14-month period from March of 2013 through to May of 2014, and says that he does not recognise himself.  In that period when he first met his now-wife, the applicant said that he was in a very care-free atmosphere, and that drink was part of it and that he drank too much.  The evidence given by his wife confirmed the atmosphere of drinking and attending bars and night clubs late into the night, often with other backpackers who wanted a party.

20. After the incident of the drink-driving and failing to assist after the crash, the applicant was charged and convicted, and received a sentence of three months’ imprisonment, but only served one month with the balance being suspended.  That period of incarceration reflects the seriousness of the offence or the offences, and I note that, in effect, he was imprisoned for the earlier assault together with the later drink-driving.

21. Mr Furlong gave evidence that after that period of incarceration that he made a promise to his now-wife that things would change, and his evidence was, indeed, that things have changed in his life.  Since mid-2014 he and his wife have ceased participating in the drunken activities that they did back in 2013 and 2014, and that these days they tend to associate more with family and friends who have children, and go to barbeques.

22. He said that he still enjoys having a drink but that he does not drink to excess, and certainly does not frequent bars into the late evening, as he used to.  The applicant served his period of incarceration and also completed 200 community hours of service, and he also attended some counselling at Amity Community on 1 October 2014.  That involved some counselling with respect to his excessive alcohol intake, together with counselling with respect to anger management issues and issues in respect to persons of authority.

23. The applicant gave evidence that he and his wife, after marrying in 2016, have continued to try for children and sadly his wife had a miscarriage in May of 2017.  He described that as a trigger that would often have led to a further alcohol abuse but instead of going down that path he was able to deal with the issue by speaking with his wife about it. 

24. Indeed there has been no further offending since that offence in 2014 and I accept the evidence given by the applicant that he has changed his ways for the better and no longer has a problem with excessive alcohol intake and that he is unlikely to go down that path again given the work that he is doing and the relationships that he has formed with other persons.

25. Some of those other persons also gave evidence including firstly his wife.  She described how they were married in August of 2016 and that they had a plan to save up some money so that they could start a family and the plan was going well in terms of both securing good employment but unfortunately they have not been able to start a family which saddens her and the applicant.  She has two brothers and a sister-in-law in Darwin and she and the applicant act as a support network for the three children of her brother and her sister-in-law, the last child having been just born in the last month or so. 

26. Mrs Furlong gave evidence of the relationship that she and Mr Furlong have with the nieces/nephews and how she assists with the sister-in-law.  The sister-in-law also provided a written statement in which she spoke very favourably of Mr Furlong and the relationship that he has built up with her children, the fact that Mr and Mrs Furlong were part of the birthing plan for their child who was recently born, unfortunately Mr and Ms Furlong had left Australia by the time the child was born but nevertheless that reflected the sort of trust that the sister-in-law had in both Mr and Mrs Furlong.

27. There was also evidence from Mrs Furlong that after the last incident in 2014 that her husband had totally changed and together they both knew what they want from life now and they have changed from the people they were back in 2013 and 2014 and she spoke of the regret that her husband has with respect to those incidents.

28. She also confirmed that they do not associate in bars anymore and they just have one or two drinks with friends at a house for a barbecue and associate more with couples and families and that they are now 36 year-olds, married and trying to have kids.  It is noted nonetheless that the offending took place at a time when the applicant was not a young man, he as about 30 or 31 years old but he does seem to have changed his ways from that time.

29. Evidence was also given from a lady by the name of Jane Gordon who is married to Graham Tough.  Jane Gordon has known the applicant for about seven years and they met through the football club.  Jane and her partner have one child who is six years old who adores both the applicant and his wife and loves it when they come to visit and they often babysit for Jane Gordon and her partner.

30. Her partner is Graham Tough and he gave evidence as well by phone as did the others.  He has known Mr Furlong for just over seven years.  He too is a pool player and they played in the same team. 

31. The next witness was a lady by the name of Helene Pretty.  She has a granddaughter who suffers from RETT Syndrome and she and an associate or hers, Jonathon Ostara knew Mr Furlong in particular because Jonathon Ostara was also an 8‑ball player and it turned out that Mr Furlong offered his services to assist with the construction of a swimming pool in the back yard of Ms Pretty's house and she said that at the time they had borrowed money and it was a big project and they would not have been able to fulfil it in the way that it happened without the applicant.  She said it was a wonderful offer by him which amazed her and she appreciated it so much and he did not require or request any payment and he did it in his own time outside of work.

32. She described how prior to having the pool in the back yard they used to have hydrotherapy sessions with their disabled daughter in the local public pool which was not always successful and now the granddaughter has access to hydrotherapy on a daily basis and she will be forever grateful to Mr Furlong for that.

33. Jonathon Ostara also gave evidence consistent with Ms Pretty with respect to the pool.  He says that Gavin had come out and said that he can get the blocks for the pool for nothing through his work and that he could lay them after work - which he did - and that he did not require anything in payment and it took over a week for him to carry that out.

34. That incident reflects very very well on Mr Furlong and one could hear in the voice of Ms Pretty how appreciative she was and how amazed she was at Mr Furlong's generosity.

35. Returning to the evidence from Mr Furlong, with respect to the four incidents, he expressed genuine remorse and regret and accepted responsibility for the seriousness of them.  He understands now that he should not have been driving after he had drunk so much and he is ashamed about his offences, in particular the assault and the abuse that he gave to the police.  He realises how stupid it was for him to drive whilst on his mobile phone.

36. His conduct has not been dishonest.  His explanation of what was disclosed on his visa application form in 2016, although at first seemed not to be complete, was ultimately accepted in the main part as being accurate by the representative of the respondent.  It is notable that alcohol was a common factor in the three more serious incidents.  He has participated in counselling for this and for his anger management issues.  As I have said, he no longer drinks to excess but still enjoys a quiet drink with friends and family.

37. In terms of the legislative framework for the offences, section 501(1) of the Act provides that:

    The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.

38. The character test is then defined by subsection 501(6).  If the applicant does not pass the character test then this enlivens a discretion to refuse to grant the visa.

39. With respect to the character test, it is necessary to have regard to the matters in subsection 501(6)(c).  The terms of that provision were considered by Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs at paragraphs 49 through to 56 which I will not quote but I do adopt the approach that is set out within those paragraphs and make the following findings; the relevant conduct occurred in the past in the sense that the applicant has not offended for about three and-a-half years.

1. The incidents of a more serious nature all involved some form of alcohol abuse or excessiveness and it is notable that the alcohol abuse which seemed to make up a significant part of the applicant's life no longer does.  It is also notable that those incidents come within the lower end of the spectrum in terms of seriousness of offending.  That is not to say that drink driving for example and failure to cooperate with authorities are not serious offences but those offences do not involve the degree of moral culpability or turpitude associated with other offences mentioned within subsection 501(6) such as gang-related criminal conduct or people smuggling or genocide or sexually based offences involving a child.

2. With respect to the disorderly conduct and the traffic offences in April 2013 again they are at the lower end of the spectrum.  It has to be said that the bar brawl and the failing to stop after a crash are more serious but again I note that they were fuelled by alcohol which appears to be something that is no longer an issue in the applicant's life.

3. I find that the nature of the criminal conduct with respect to the four separate incidents involved what I would describe as a low degree of moral culpability or turpitude.

4. An assessment of the applicant's past and present general conduct reveals a person who for most of his life has stayed out of trouble and who has contributed positively to the community by maintaining steady employment as a bricklayer and by also participating in his local football club both by playing and coaching and being involved in fundraising events associated with the club.  He has also maintained his interest in 8-ball.

5. Due regard must be given to the applicant's past and recent good conduct.  The incidents of offending occurring as they did, in a 14 month period from March 2013 to May 2014 must be assessed in the context of his overall good behaviour. 

6. The applicant's past criminal conduct and his past and present general conduct are not sufficient to establish that the applicant at the time of the decision was not then of good character.

7. The second limb of the character relied upon by the respondent requires an analysis as to whether, if the applicant remained in Australia there is a risk that he would engage in criminal conduct as set out in subsection 501(6)(d)(i).

8. Adopting a contextual and purposive approach to the interpretation of this provision I consider that the criminal conduct referred to in subsection 501(6)(d)(i) must carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions such as traffic offences.  There is no evidence that would suggest a risk of the applicant engaging in any criminal conduct of a more serious nature other than that to which he was convicted. 

9. As previously stated, these offences were at the lower end of the spectrum and therefore I consider that it is not established that there is a risk that the applicant would engage in any criminal conduct in the middle to upper range of the spectrum of seriousness for criminal conduct.

10. Guidance with respect to that aspect of the character test embodied in section 501(6)(d)(1) is found in the Direction in Section 2 of Annexure A at paragraph 6 and 6.1.  With respect to establishing a risk, paragraph 6(2) provides that there must be evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in criminal conduct.  Further, as per paragraph 6(3), it is not sufficient to find that the person has engaged in criminal conduct in the past.  There must be a risk that the person would engage in the future in criminal conduct.

11. I find that there is not sufficient evidence to establish a risk that the applicant would engage in criminal conduct in Australia in the future.  The only evidence to the contrary is the fact that the convictions flowing from the four separate incidents.  That evidence must be seen in the context of there being no offending for the last three and-a-half years and his otherwise exemplary behaviour in the community namely, as previously stated, the applicant's consistent employment, his participation in the local football club and the pool club and the associated fundraising activities together with the strong relationship that he has with his wife and his friends and his wife's family and their children.

12. When one looks at the circumstances as a whole there is insufficient evidence of anything more than a minimal or remote chance that the applicant would re-offend.

13. For all of the reasons above there is insufficient evidence to establish that the applicant does not pass the character test. Accordingly, the threshold issue embodied within section 501(1) is not made out. In these circumstances there is no need to consider the discretion as to whether the grant of the visa should be refused.

14. In the event that I am wrong and that the applicant does not pass the character test then I would not exercise the discretion to refuse to grant the visa to the applicant for the reasons that follow.

15. I refer now to Direction No 65 in an exercise of the power given by section 499 of the Migration Act, the Minister issued Direction No 65 on 22 December 2014. I refer to paragraph 6.1 which sets out the objectives of the Act and paragraph 6.2 which provides general guidance and paragraph 6.3 which provides principles to be applied.

16. The manner in which the discretion is to be exercised is set out in paragraph 7 informed by the principles in paragraph 6.3, the decision-maker must take into account the considerations set out in part (b) of the direction.  These considerations for a visa applicant include Primary considerations at paragraph 11 and Other considerations at paragraph 12.  Paragraph 8(1) provides that a visa applicant should have no expectation that a visa application will be approved.  The paragraph at subsection 8(4) further provides that primary consideration should generally be given greater weight than the other considerations.

17. Paragraph 11(1) provides that in deciding whether to refuse a non-citizen's visa, the following are primary considerations, namely the protection of the Australian community from criminal or other serious conduct, the best interest of minor children in Australia and the expectations of the Australian community.

18. With respect to the protection of the Australian community, the conduct engaged in by the applicant was at the lower end of the spectrum in terms of seriousness.  It involved a low degree of moral obloquy or turpitude.  The offences do not fit within the category of crimes referred to in paragraph 11.1.1 (1)(a) or (b).  The applicant was fined for his offences and incurred a short custodial sentence, which does reflect the seriousness of the offences which he committed.  Having said that, the applicant's offending was infrequent and there is no suggestion of a trend of increasing seriousness.

19. The applicant has not provided false or misleading information to the department and the offences do not involve repeated offending.

20. With respect to the risk to the Australian community referred to in paragraph 11.1.2 of the Direction the applicant does not represent an unacceptable risk of harm. 

21. The applicant has undertaken a day's course of rehabilitation and has been employed and participated gainfully in the community since his most recent offence in 2014.  These are factors that weigh heavily in favour of the applicant under paragraph 11.1.2(3)(b). 

22. In conclusion, with respect to the protection of the Australian community from criminal or other serious conduct, I consider that this factor is a neutral consideration in deciding whether to refuse the applicant's visa in the sense that it does not weigh for or against the outcome.

23. The next primary consideration relates to the best interests of minor children in Australia.  There is evidence of a close and ongoing relationship between the applicant and his nephew in particular who is about three years old and there is evidence from the sister-in-law that they rely heavily on Mr and Mrs Furlong to assist with their upbringing of their children and that their absence would have a significant detrimental impact on the children's upbringing.  In summary this is a factor which weighs in favour of the applicant.

24. Next, with respect to expectations of the Australian community, whilst the Australian community expects non-citizens to obey Australian laws whilst in Australia, the laws that were breached were at the lower end of the spectrum of seriousness of criminal conduct and I find that the risk of further offending is low.  The expectations of the Australian community would also be influenced by the exemplary work record of Mr Furlong together with his acts of generosity in terms of both time and effort particularly in respect to the constructing of the swimming pool to assist the disabled granddaughter of Helene Pretty but also noting the fundraising activities that the applicant was involved in and in that regard I do not consider there to be an expectation of the Australian community that a man of his character would not be entitled to remain in Australia and to carry out his life and indeed contribute positively in the future to the life of other Australians as he has done in the past.

25. So in terms of expectations of the Australian community that is a factor that weighs in favour of the applicant.

26. In terms of other considerations, there is an impact on family members which I have mentioned.  I have mentioned the sister-in-law's letter of support which speaks in very favourable terms of the applicant and so this factor is in favour of the applicant.

27. So my conclusion with respect to exercising a discretion is that if I were to do so I would do so in favour of granting a visa to the applicant.

28. Finally, as would be apparent from my reasons, the decision under review is set aside and substituted with a decision that the visa application should not be refused on character grounds.

    END OF ORAL DECISION   [4.18 pm]

29. That concludes my reasons.  I apologise for that taking so long but I would also like to give my thanks to Ms Stokes in particular in respect to the approach that she took to this hearing in terms of the assistance in particular from the written submissions and I would equally like to thank Mr Kelleher for his written submissions and for the assistance that he gave to me and lastly and perhaps most importantly, I would like to wish Mr Furlong and his wife all the best in the future.

30. Thank you.  That concludes the hearing.  Good afternoon.