Greenwood and Minister for Immigration and Multicultural and Indi Genous Affairs
[2003] AATA 1020
•10 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1020
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1071
GENERAL ADMINISTRATIVE DIVISION ) Re LOUISE MICHELLE GREENWOOD Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President, Don Muller Date10 October 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration , in accordance with the direction that the application by Louise Michelle Greenwood for a subclass 309 Spouse (provisional) visa for her partner, Howerd Antony Lupton should not be refused pursuant to section 501(1) of the Migration Act 1958. ............Signed.................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - Spouse (provisional) visa – visa applicant convicted of minor offences in the United Kingdom prior to June 1993 - whether visa applicant made false and misleading statements about his criminal history on two occasions on entering Australia in 1998 and 2000 - whether character test passed
MIGRATION ACT 1958:subsection 501(1), 501(6)(c)
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Louise Greenwood (“the Applicant”) for review of a decision by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (“the Respondent”), to refuse to grant a Subclass 309 Spouse (Provisional) Visa, to her partner, Howerd Anthony Lupton (“the Visa Applicant”), on the ground that he did not pass the character test, pursuant to section 501(1) of the Migration Act 1958 (“the Act”).
2. At the hearing the Applicant was represented by her parents, James and Eileen Greenwood, and the Respondent was represented by Mr Paul Hardman, solicitor. Oral evidence was given by telephone from England by Louise Greenwood and by Howerd Antony Lupton.
3. The Tribunal had before it the following documents :
(a)The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;
(b)Supplementary section 37 documents, exhibit 2;
(c)Statement of Louise Greenwood dated 4 January 2003, exhibit 3;
(d)Statement of Howerd Antony Lupton dated 6 January 2003, exhibit 4;
(e)Joint Statement of James and Eileen Greenwood dated 10 January 2003, exhibit 5;
(f)Internet extracts relating to the Bradford, U.K. riots, exhibit 6;
(g)Internet Summary of the Rehabilitation Offenders Act 1974 (UK) , exhibit 7;
(h)Summary from Halsbury’s Laws of England regarding the Rehabilitation Offenders Act 1974 (UK), exhibit 8;
(i)Bundle of character references for Howerd Anthony Lupton, exhibit 9.
4. It was submitted on behalf of the Respondent that Mr. Lupton does not pass the character test because he has a record of committing a series of minor criminal offences and because he failed to reveal his criminal record when he entered Australia for short stays of a few weeks in November 1999 and in December 2000.
5. There is no suggestion that Mr. Lupton has a “substantial criminal record” within the meaning of that term in sub-sections 501(6)(a) and (7) of the Act.
6. The relevant provisions of the Act are:
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(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).
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) …
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.”
7. If Mr. Lupton does not pass the “character test”, the Tribunal nevertheless has the discretion within s.501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.
8. In deciding whether to exercise any discretion to grant a visa, the Tribunal must take into account directions made by the Minister, pursuant to section 499 of the Act:
“499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
Subsection (1) does not limit subsection 496(1A).”
9. The relevant direction made by the Minister in this matter is Direction 21, “Visa refusal and cancellation under section 501 of the Migration Act 1958”.
10. The following matters are not in dispute and the Tribunal finds that:
(a)Howerd Lupton was born in the United Kingdom on 20 November 1965.
(b)Louise Greenwood was born in the United Kingdom on 6 September 1974. She is the only child of Eileen and James Greenwood.
(c)The criminal history of Howerd Lupton is as follows:
“4.10.89 at Bradford Magistrates
1. Using Threatening, Abusive, Insulting Words or Behaviour.
Absolute Discharge Bound over 12 mths08/06/90 at Leeds Crown
1. Obtaining Property by Deception – Fine £50.00
2. Attempt/Obtaining Property by Deception – Fine £50.00
19/03/92 at Leeds Crown
1. Obtaining Property by Deception – Community Service order 50 hrs
2.Obtaining Property by Deception – Community Service order 50 hrs concurrent
3.Attempt/Obtaining Property by Deception – Community Service order 50 hrs concurrent
4.Burglary and theft dwelling – Community Service order 100 hrs consecutive compensation £250.
On 5 June 1992, he was fined £50 for breach of his community service order. He was also ordered to continue with the community service.
He had obtained a good job and was working 6½ days per week. He decided to work at the job and not do the community service.
On 30 November 1992, in default of his completion of community service, he was sentenced to the following penalties:
Burglary and theft-dwelling Imprisonment 6 months wholly suspended for 12 months. Fine £75.
Obtaining property by deception Imprisonment 3 months concurrent, wholly suspended for 12 months. Fine £25.
Obtaining property by deception Imprisonment 3 months concurrent, wholly suspended for 12 months. Fine £25.
Attempt/Obtaining property by Imprisonment 3 months concurrent
deception. wholly suspended for 12 months. Fine £25.
6/05/93 at Keighley Magistrates
1. Obtaining Property by Deception Fine £125 Compensation £50.
2. Obtaining Property by Deception Fine £125.00 Compensation £50. 3. Obtaining Property by Deception Fine £125
Compensation £39.98.”
(d)Louise Greenwood arrived in Australia with her parents on 14 February 1993 at nineteen years of age. Her parents arrived as permanent residents sponsored by James Greenwood’s brother. Louise Greenwood is an Australian citizen.
(e)Louise Greenwood had a holiday with her parents in England in 1996. They stayed in England for about four weeks.
(f)On or about 20 November 1997, Louise Greenwood travelled alone to England to have an extended holiday with her grandparents (father’s parents) in Bradford. She also intended to catch up with other relatives. She obtained employment as a barmaid at the Blue Pig Inn, Bradford. It was at her place of employment where she met Howerd Lupton.
(g)Louise Greenwood and Howerd Lupton began an intimate relationship from early 1998 onwards. He regularly visited her at her grandparent’s home.
(h)In October 1998, Eileen and James Greenwood travelled to England for the funeral of Eileen Greenwood’s mother. It was then that they met Howerd Lupton for the first time.
(i)On 19 November 1998, Louise Greenwood and Howerd Lupton travelled to Australia for a three week holiday. Howerd Lupton completed his “incoming passenger card” and in answer to the question “Do you have any criminal convictions”, he ticked the “No” box.
(j)On 7 December 1998, Louise Greenwood and Howerd Lupton left Australia and returned to England.
(k)On 5 May 1999, Howerd Lupton was convicted of driving with excess alcohol. He was fined £180 and disqualified from driving for 15 months.
(l)In May 1999, Louise Greenwood became pregnant to Howerd Lupton.
(m)On 6 November 1999, Louise Greenwood and Howerd Lupton purchased their first home at Foston Lane, Fagley, Bradford.
(n)On 17 February 2000, Louise Greenwood gave birth to a daughter. The child is an Australian citizen.
(o)In the year 2000, James and Eileen Greenwood travelled to England to see their first grand child.
(p)On 15 April 2000 Louise Greenwood and Howerd Lupton became engaged and planned to marry in Australia on 29 December 2000. They travelled to Australia separately in December 2000 for that purpose. Upon arrival into Australia, Howerd Lupton indicated on his Incoming Passenger Card that he had no criminal convictions.
(q)Howerd Lupton’s parents and his sister’s family were to travel to Australia for the wedding. However, his father fell ill and was unable to travel. The couple decided to postpone their wedding until his father could travel. (Unfortunately, his father passed away in December 2002.)
(r)On 2 January 2001, Louise Greenwood, Howerd Lupton and their daughter returned to England from Australia.
(s)On 7 September 2001 Louise Greenwood applied to sponsor Howerd Lupton for partner migration to Australia.
(t)On 14 September 2001 Howerd Lupton completed his application form for migration to Australia. Enclosed with the application form was a “print out” of a summary of his convictions, dated 8 June 2001. This was later confirmed by a copy of his criminal history from the National Identification Service dated 12 April 2002.
(u)On 20 May 2002 the Australian High Commission wrote to Howerd Lupton indicating that his application for a visa may be refused and invited him to comment on the possibility of the refusal and on his criminal convictions.
(v)On 4 June 2002 Howerd Lupton wrote to the Migration section of the Australian High Commission. In his letter he states:
“My last offence was for drink driving in 1999 I can only say that it was down to total stupidity and that I have learnt my lesson.
…
On my Arrest/Remand History … I was charged in 1989 with using threatening, abusive, insulting words or behaviour, to be really honest I have no idea what this was for, I cannot remember.
In 1990 and 1993 I was charged with obtaining property by deception for making purchases with stolen credit cards, I know it makes no difference but in both cases I did not steal the cards, but I admit to using them, this was down to being easily led I did not do it to make any kind of gain as I was in both cases in full time employment.
In 1992 I was charged with burglary and theft of a dwelling and obtaining property by deception, again with the wrong crowd…. There was no one living in the house, but there was still some items left in there, which we took, a few ornaments and pictures, again this was an act of total stupidity and foolishness for this I got fined and ordered to do community service.
….
I would now say that I have rehabilitated myself apart from my drink driving my last offence was nearly 10 years ago. I learnt then I was more of a man to say no then to go along with the rest of the crowd.
I currently work at Oak Lane Tyres as a tyre fitter, I have done so since 1995… My finance Louise and myself have been together for 4 and a half years and are very happy together…
If I were granted a visa to live in Australia we would live with Louise’s parents until we get settled, we would both be able to work, we have savings here and also in Australia and we would use the money from the sale of our house which would be used towards buying a property in Australia.”
(w)The Australian High Commission sent a further letter to Howerd Lupton requesting him to address why he did not disclose his previous criminal convictions on his Incoming Passenger Cards in 1998 and 2000.
(x)On 3 November 2002 Howerd Lupton responded:
“ When going to Australia for a holiday on the 19/11/98 I did not declare any of my criminal convictions because I did not think it necessary as they happened 5 years previously. I thought after 5 years had passed they had been spent, I believe that this is the case under what I know now as the Rehabilitation Act, I did not realise it did not apply in Australia.
…
As for my drink driving offence in 1999 I did not declare this when entering Australia on 12/12/00 as I thought it was classed as a minor traffic offence and not counted as a criminal conviction…”
(y)In a letter dated 10 December 2002 from the Australian High Commission Howerd Lupton was refused a Subclass 309/100 Spouse (Provisional) Visa. Attached to the letter was the decision record dated 11 November 2002. In it the delegate concluded that Howerd Lupton did not meet the character test in subsection 501 (6)(c)(ii) of the Act and that no discretion should apply to grant the visa.
(z)On 6 December 2002 Louise Greenwood applied to this Tribunal for review of the decision not to grant Howerd Lupton a visa.
11. Louise Greenwood provided written statements to the Tribunal and she also gave oral evidence. She made the following points (among others):
· She went to the United Kingdom in 1997 on a working holiday. She met Howerd Lupton in 1997 and began a relationship with him. They began living together in 1999 when they bought their first home on 6 November 1999.
· She knew of her partner’s criminal history from the beginning of their relationship. On their first trip to Australia in 1998 they discussed whether he should disclose his criminal history on the Incoming Passenger Card. She recalled that they both thought he did not have to disclose any convictions that were over five years old.
· They regarded the drink driving offence as a traffic offence and not a criminal conviction.
· She and her daughter are supported financially by Howerd Lupton and they have a very happy and loving relationship. She is currently expecting the couple’s second child.
· She would suffer greatly by not being able to move back to Australia. She is the only child of James and Eileen Greenwood and she feels that if her family remain in the United Kingdom her children would miss out on the love and support of her parents. She feels very isolated in Bradford, United Kingdom and that the crime in their neighbourhood has resulted in her avoiding going to the parks with her daughter and into the city.
· She feels very strongly that Australia will offer her family a better way of life including the support of her parents. She feels torn between her parents and her partner and it is an impossible situation in which to be.
· She feels that she should be closer to her parents as they get older, as they may need her to support them later on in life.
12. Howerd Lupton provided written statements to the Tribunal and he also gave oral evidence. He confirmed the matters referred to above in relation to his date of birth, criminal convictions, meeting Louise Greenwood, his trips to Australia and his letter to the Australian High Commission in London, in June 2002. He also made the following further points (among others)
· He no longer associates with the group of people with whom he was connected when he was convicted of offences from 1989 to 1993.
· He has not been involved in any wrong doing, apart from drink driving in 1999, for 10 years.
· He has worked for the same company since 1995, Oak Lane Tyres, and he is now the manager.
· He supports his wife and child. He also pays child support for a fourteen year old son from a former relationship, but he has no contract with the son or his mother because she has remarried and has two more children.
· He believes that Louise Greenwood feels very isolated in England because neither his relations nor her relations see much of them. He does not own a car. Their mobility is very restricted.
· He did not disclose his criminal convictions on the incoming passenger cards in 1998 and 2000 because he thought that after five years his record would be regarded as “spent” (or ignored). He said that either he recalled being told this at the time he was dealt with or that it was common knowledge that people did not have to reveal former convictions of a minor nature after five years.
13. James and Eileen Greenwood tendered a joint statement in which they said that they would suffer great emotional hardship if they were to be permanently separated from their only daughter and from their only grandchildren. The Tribunal accepts that this would be so.
14. A large bundle of references were tendered for the purpose of showing that Howerd Lupton is currently regarded in his community and in his business dealings as a hard-working and decent man. The Tribunal finds that there is no reason to not accept those references at face value.
15. The Tribunal accepted into evidence an excerpt from the United Kingdom Rehabilitation of Offenders Act 1974 (the UK Act). Those parts of that Act relevant to this review relate to criminal convictions which become “spent” (or ignored), after a “rehabilitation period”.. The relevant rehabilitation period is covered in paragraph 1579 which provides:
“(3) PERIODS OF REHABILITATION
1579. Persons aged seventeen and over. For the purposes of the Rehabilitation of Offenders Act 1974, a rehabilitation period is reckoned from the date of the conviction in respect of which the sentence was imposed. The rehabilitation period applicable in respect of a sentence passed on a person aged 17 years or over is calculated as follows.
SENTENCE REHABILITATION PERIOD
1 A sentence of imprisonment5, detention in a Ten years
young offender institution or youth custody or
corrective training for a term exceeding six
months but not exceeding 30 months
2 ..
3 A sentence of imprisonment, detention in a Seven years
young offender institution or youth custody for
a term not exceeding six months.
4 ..
5 ..
6 A fine or any other sentence subject to Five years
rehabilitation75 Consecutive terms of imprisonment …. and terms which are wholly or partly concurrent, being terms of imprisonment or detention imposed in respect of offences of which a person was convicted in the same proceedings, are to be treated as a single term. …. No account is to be taken of any subsequent variation, made by a court in dealing with a person in respect of a suspended sentence of imprisonment, of the term originally imposed.
7 … The appropriate period where a fine is imposed on an offender, with imprisonment in default of payment, is the shorter one relating to the fine. “
16. It was submitted on behalf of the Respondent that the appropriate “period of rehabilitation” for Howerd Lupton was seven years not five, because he had been sentenced to imprisonment for six months wholly suspended, after he had failed to complete the original sentence of community service. It was submitted that therefore, his statement that he thought the conviction was “spent” after five years was not reasonable and should not be believed. This reasoning should lead to the conclusion that he deliberately attempted to mislead immigration authorities when he entered Australia in 1998 and 2000, and that he is therefore a person who does not pass the character test.
17. The Tribunal does not accept that it is clear from the notes to the UK Act that the appropriate period of rehabilitation in Howerd Lupton’s case is seven years not five. The notes suggest that it is the original sentence which is to be taken into account and not subsequent variations due to default. In relation to the sentence of six months wholly suspended, the original sentence was 100 hours of community service. Whatever the true legal position is, the Tribunal is satisfied that Howerd Lupton believed that the period was five years.
18. The Tribunal finds that Howerd Lupton was not acting in a deliberately dishonest manner when he filled in his incoming passenger cards in 1998 and 2000.
19. As to Howerd Lupton’s conviction for drink-driving in 1999, the Tribunal takes the view that it does not constitute a criminal conviction. It is a conviction for a breach of the Traffic Act (United Kingdom). Such a conviction is nothing to be proud of. It shows a lack of judgment. However, there are many members of the Australian community who would normally be regarded as persons of good character, who have driven motor vehicles whilst having “excess” alcohol in their blood. The Tribunal does not accept that one such conviction is evidence that the person fails the character test.
20. The evidence indicates that for the last ten years, Howerd Lupton has had a hard-working, decent life, and he is well respected in his immediate neighbourhood.
21. The Tribunal finds that Howerd Lupton currently passes the character test.
22. The decision under review is set aside.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 1 May 2003
Date of Decision 10 October 2003
Applicant Mr. & Mrs. Greenwood
Solicitor for the Respondent Blake Dawson Waldron
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