Grasso and Minister for Immigration and Multicultural Affairs - [2000] AATA 835

DECISION AND REASONS FOR DECISION [2000] AATA 835

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/889

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GIUSEPPE GRASSO
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date19 September 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant, Giuseppe Grasso, and that he be granted the visa he seeks.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa refusal - failure to declare convictions - risk of recidivism - genuine marriage to an Australian citizen - hardship.

Migration Act 1958 s 501

REASONS FOR DECISION

19 September 2000 Deputy President DP Breen, Presidential Member

This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 19 July 2000 to refuse the applicant's Spouse Visa under Section 501 of the Migration Act 1958.
This case was heard before me on 12 and 13 September 2000 in Melbourne. Written submissions were received on 15 September 2000. The applicant, Giuseppe Grasso was represented by Mr J Gibson of Counsel, instructed by Messrs Kuek and Associates. Mr R Knowles, Solicitor of Messrs Clayton Utz represented the respondent Minister.
Oral evidence was taken from the applicant; Mrs Grasso, the applicant's wife; Ms C Petrolo, the applicant's cousin; Mr G Steccato, the applicant's father-in-law; and Dr Guarino. Immigration officers, Ms M Warzel and Mr J Macleod, also gave oral evidence.
The following documents were taken into evidence:

Exhibit 1 "G" Documents
Exhibit 2 Statement of Giuseppe Grasso
Exhibit 3 Statement of Angela Grasso
Exhibit 4 Statement of Giacomo Steccato
Exhibit 5 Statement of Robert Steccato
Exhibit 6 Statement of Concetta Petrolo
Exhibit 7 Letter from Sister Rosalie Hanley
Exhibit 8 Report of Ms Syndon Barabash
Exhibit 9 Report of Dr CJ Morales
Exhibit 10 Report of Dr Guarino
Exhibit 11 Statement of Malgorzata Warzel
Exhibit 12 Statement of Jon Macleod
Exhibit 13 Dictionary Extracts
Exhibit 14 Confidential Documents
Exhibit 15 Departmental Form for Application for further stay as a visitor

The applicant was born in Messina, Italy in 1964. In 1993 he was convicted of armed robbery and unlawful use of a motor vehicle and was sentenced to four years imprisonment. His father died in 1988 and his brother died in 1992 leaving his mother as his only immediate family. The applicant and his mother chose to travel to Australia to visit relatives in March 1999. The applicant understood very little English at the time of his arrival, and in filling out his incoming passenger card, he failed to disclose his previous criminal convictions. Mr Grasso and his mother stayed with relatives and towards the end of their three-month tourist visa, these relatives encouraged them to stay a little longer. The applicant applied for an extension to his visa in June 1999 and his cousin helped him fill in the forms. Again he did not disclose his criminal convictions. The applicant met his wife, an Australian citizen in July 1999 and they were married in October 1999. There is no suggestion that this is anything other than a genuine marriage. The applicant told his wife and his family about his convictions in around August 1999.
The Immigration Department first became aware of Mr Grasso's convictions when he filled in his application for a spouse visa in November 1999. It is on the basis of these convictions and the applicant's failure to disclose them to the Department on two occasions that the applicant's visa was refused under Section 501 of the Migration Act 1958 and he was taken into immigration custody. The sentence for 4 years for the armed robbery means that Mr Grasso has a substantial criminal record under subsection 501(7) and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community, and, where the applicant is involved in a parental relationship with any children, the best interest of those children. The final consideration does not apply in this case.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the refusal of the visa will have on other non-citizens.
It is acknowledged that the crime of armed robbery is a serious crime. However the circumstances of this particular offence are important in assessing the danger to the Australian community. Mr Grasso was 29 years old at the time of the offence. He had recently borrowed money from childhood friends of his to purchase a motorbike and to fund other activities. However, these friends were involved in criminal activity. After the applicant wrote the motorcycle off in an accident, the friends insisted that he repay the debt of around $10,000. An hour and a half before the commission of the offence they told him they would help him repay the debt if he would assist them in a robbery. As they had a gun at the time he did not feel he was in a position to decline the offer. The applicant drove his two accomplices to a bank in his car and then proceeded into the bank with one of them. He escorted the manager to the safe and held the bag while it was filled with money. During the robbery the applicant had a toy gun in his belt. They left the bank in the applicant's car and then the two accomplices told him to let them out and they would catch up with him later. They took the money with them. The applicant is obviously not a natural born criminal, in that he continued driving around in his car and was shortly thereafter picked up by Police on information that the car had been seen leaving the bank. The final irony of all of this is that he said in evidence that he was glad that the Police had apprehended him. I took that to mean that he was pleased to have an early opportunity to get his guilt-load off his chest. He did not inform on his accomplices and he was threatened that if he did, both he and his mother would be harmed. The applicant was convicted and sentenced to 4 years, which was reduced on appeal to 3 years of which the applicant served 2½. The applicant has no other criminal history.
In considering this man's risk of recidivism, the Tribunal notes that the applicant served his time without any trouble and was even released a number of times on his own recognisance to look after his mother, during the prison sentence. The offence was committed 7 years ago and the applicant has not been in any trouble with the law since. It is clear that this offence was out of character for the applicant and was committed in a situation of duress. The applicant presented to the Tribunal as a person who had made a mistake in his past and was genuinely remorseful for it. The Tribunal assesses the risk of recidivism as extremely low.
In relation to the non-disclosure of the convictions on the incoming passenger card, the Tribunal accepts that the omission was due to language difficulties. The applicant understood enough English to fill in most of the details. However, he thought the term "criminal convictions" meant effectively "criminal intentions". Although he thought that was an unusual question to ask, he answered what he thought he was asked. In relation to the non-disclosure on the visa extension forms, it was the applicant's cousin who filled them out. At that time she was unaware that the applicant had a criminal history and, in fact, it did not even cross her mind that he might, given her assessment of him as a person. The forms were filled out shortly before the time limit for the extension expired and were completed between dinner and doing the dishes late one evening. The applicant's cousin, Mrs Petrolo, said she asked the applicant some questions, but filled most of the form out from her own knowledge and the applicant's passport. The form does not actually ask whether the applicant has any criminal convictions, but rather has a statutory declaration to be signed at the end of the form which includes a statement among a number of other statements that the applicant does not have a criminal record. It was Mrs Petrolo's evidence that she simply told the applicant to sign, once she had filled in the form, which he did. It is the Tribunal's view that the non-disclosure in this case was due to genuine inadvertence rather than any intent to mislead the Department. It is clear that the applicant would be unlikely to fail to provide relevant information to the Department in the future, particularly after these proceedings.
It was suggested in the respondent's case that the applicant failed to explain the circumstances of the offence to the Department at his interview and was providing this explanation for the first time in these proceedings. The Tribunal accepts that the applicant had explained the circumstances to family members in 1999 and in early 2000. The Tribunal further accepts both Mr and Mrs Grasso's evidence that to their knowledge, the interview on 20 March 2000 was in relation to the spouse visa and had something to do with the genuineness of their marriage. They were not aware at all that the applicant's criminal convictions would be discussed until they were in the interview. It is clear that Mr Grasso did not understand the offer to provide further information as being an offer to explain his conviction, but rather, thought it related to the genuineness of his marriage – what he believed to be the focus of the interview. The Tribunal found both Mr and Mrs Grasso to be very credible witnesses. In terms of the content and procedure of the interview on 20 March 2000, the Tribunal prefers their evidence to that of Ms Warzel, the Departmental Officer. It was Ms Warzel's evidence that she carries out a large number of these interviews each day and although she has a general procedure for conducting these interviews, six months after the event she had to rely on her notes to recollect the interview. Mr and Mrs Grasso had participated in only one interview in those six months and their recollection of the event was very clear. Further, the Tribunal accepts the evidence of Mr Grasso and his family and that of Sister Rosalie Hanley in respect of his abilities with the English language. The Tribunal observed that the applicant has some command of the English language and does understand a fair amount of what is said to him. However, there are occasions when he thinks he has understood, but has misinterpreted a key word in the sentence. Further, he has not yet mastered the more subtle nuances of the language. The difficulties he has with the language are exacerbated when he is in a stressful environment.
The question of general deterrence is not of great weight in this matter. Although Mr Grasso has many relatives who may hear of the visa refusal, they are all Australian residents and really would not be effected in terms of deterrence. As the crime is not a notorious one and Mr Grasso has no contact with co-offenders, such refusal would not have any great deterrent effect.
The second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa. While armed robbery is always a serious offence, in this case the applicant's actions cannot be regarded as abhorrent. Further, while the community would prefer that even old criminal convictions are disclosed upon entry to the country, they would not regard the failure to do so, given language difficulties, as abhorrent behaviour.
Overall, the applicant committed a serious offence in circumstances of duress over 7 years ago. He has served his time for that offence and his risk of recidivism is very low. As such the Australian community does not require him to be removed from the country to ensure their protection. The primary considerations are balanced in favour of the applicant being granted the visa he seeks.
There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration. The pertinent secondary considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or defacto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;

(d)      family composition of the non-citizen's family, both in Australia and overseas;
(e)      evidence of rehabilitation and recent good conduct;
(f)       whether the application is for a temporary or permanent visa;

(g)the purpose and intended duration of the entry or stay in Australia, including any significant compassionate circumstances.

The applicant has no immediate family in Italy. He has over fifty relatives who live in Australia who are supportive of his and his mother's intent to remain in Australia. The applicant is a part of a genuine marriage with an Australian citizen. Mrs Grasso is extremely close to her father and her younger brother since her mother's death in 1988. She sees her life as being here in Australia as she has lived here for 33 years and does not want to have to be forced to choose between her family and her husband.
The applicant's mother has applied for permanent residence on the basis of her son receiving a spouse visa. She is elderly and very ill. She suffers from chronic lung disease, obstructive sleep apnoea and high blood pressure. She is currently on medication and needs a machine to help her breathe at night to ensure she does not go into heart failure. It was her doctor's opinion that it will be at least another nine to twelve months before she will be fit enough to consider travelling. The applicant and his mother are very close and he has been taking care of her since his father's death. The applicant has a good work history and only this one blemish on his criminal history, which was a number of years ago. All of the evidence points to his being able to become a productive member of the Australian community, particularly as, over time, his English improves. Although the visa sought is a permanent one, in the circumstances it is the Tribunal's view that the circumstances are such that it should be granted.
One further point which was of great concern to the Tribunal, was the attitude of the Departmental Officer, Ms Warzel, who interviewed the applicant and his wife. It was her evidence that the interview on 20 March was also to consider Mr Grasso's application for a work visa. In her report she stated that she had seen a white substance under the applicant's fingernails and she suspected him of working illegally. However, she said she did not ask him about this as she was expecting an adverse decision to be made against him on the basis of his convictions so she would not have to deal with that application. This shows a clear bias against the applicant at the first interview by an officer of the Department. As such, it cannot be said that a fair interview was conducted or that the Minister's delegate received balanced information for his assessment of this case. It must be noted that the applicant explained that he had been helping his relatives with renovations and car restorations which may have led to his having that substance under his nails at the time of the interview.
This is clearly a case where both the primary and secondary considerations are balanced in the applicant's favour and he should be allowed to remain in Australia. For the above reasons the Tribunal sets aside the decision under review and in substitution therefore determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant, Giuseppe Grasso, and that he be granted the visa he seeks.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  12.9.00, 13.9.00
Date of Decision  19.9.00
Counsel for the Applicant        Mr J Gibson
Solicitor for the Applicant         Messrs Kuek and Associates
Counsel for the Respondent
Solicitor for the Respondent    Mr R Knowles, Messrs Clayton Utz