Gruszkowski and Minister for Immigration and Multicultural Affairs
[2000] AATA 402
•23 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/790
GENERAL ADMINISTRATIVE DIVISION )
Re ANDREW GRUSZKOWSKI
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D Chappell, Deputy President
Date23 May 2000
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that YIngphan Gruszkowski meets the requirements of Clause 4001 of the public interest criteria in Schedule 4 of the Migration Regulations and s501 of the Migration Act (1958) for the grant of a subclass 309 (Spouse (Provisional)) visa.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 309 spouse (provisional) visa – refusal to issue – citizen of Thailand – not of good character due to past general conduct – association with husband involved in drug related activities - convicted of drug trafficking in heroin – pleaded guilty in the Thai criminal court – joint possession of heroin hydrochloride for sale – violation of Thai Harmful Drugs Act – sentenced to be executed – commuted to life imprisonment – commuted to a term of 40 years imprisonment – granted a Royal Pardon for release – released on grant of pardon – not aware of husband's involvement in drug related activities – no prior convictions – offence lesser nature than of her husband – intervention by Australian law enforcement officer with his Thai colleagues – rehabilitation while in custody – commencing a university degree – conduct occurred almost a decade ago – person of good character – nothing in relationship to husband to alter assessment of good character – cannot assume corruption of character on the basis of marital relationship – not a potential threat to Australian community – would not undermine strength and integrity of Australia's immigration program.
Migration Act 1958 ss 501(1)(b)(i);(2)(i);(2)(a); (1)(b)(i);(iv)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998
Customs Act 1901
Sexual Discrimination Act 1984
Anti-Discrimination Act NSW 1997
Acts Interpretation Act 1901 s15AA
Jones v Dunkell (1959) 101 CLR 298
Waterhouse v Bell 1991-92 25 NSWLR 99
R v Wong and Ng (1988) 39 A Crim R1
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Irving v Minister for immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
REASONS FOR DECISION
23 May 2000 Dr D Chappell, Deputy President
BACKGROUND
Application and Hearing
This is an application by Mr Andrew Gruszkowski (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to his wife, Ms Yingphan Gruszkowski (the visa applicant), a subclass 309 (Spouse (Provisional)) visa. The refusal was based on a finding that Ms Gruszkowski was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr David Phillips, of counsel, represented Mr and Ms Gruszkowski at the hearing. Mr and Ms Gruszkowski gave personal testimony to the Tribunal. Mr Andrew Mrowiec also testified on behalf of the applicants.
Ms Julianne Taverner, a departmental advocate, represented the respondent. No witnesses were called on behalf of the respondent. The Tribunal was grateful for the interpreting assistance provided during the hearing by Ms Songsri Foran.
The Tribunal had before it documents and supplementary documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No. Description Date
A1 Translation - Statement by Assistant Abbott of Thinakornimit Council 28/2/2000
A2 Translation - Royal Pardon 5/6/1998
A3 Letter from Mr A. Gruszkowski to King of Thailand 5/4/1996
A4 Letter from Mr A. Gruszkowski to Ms J. Taverner, DIMA 24/2/2000
A5 Statutory Declaration of Mr A. Mrowiec 6/3/…
A6 Statutory Declaration of Mr W. Zalecki 6/3/2000
A7 Statutory Declaration of Mr A. Piszak 6/3/2000
A8 Fax from Australian Federal Police in response to summons 7/3/2000
A9 Thai Royal Pardon for Mr A. Gruszkowski …
R1 Australian Federal Police Criminal History Check of Mr A. Gruszkowski 6/3/2000
R2 Amnesty International Report –extracts "The Death Penalty"
Circumstances Leading to Visa Refusal
The following general facts, which led ultimately to the refusal by the respondent of the visa sought by Ms Gruszkowski, were not in dispute between the parties. Ms Gruszkowski (nee Keernnon), the wife of the review applicant, was born on 14 September 1957 in Northpburi Province, Thailand (T6: 56). On 8 July 1991 the visa applicant pleaded guilty in the Thai Criminal Court to a charge of joint possession of heroin hydrochloride for sale comprising a net weight exceeding five kilograms (T7: 102). This act was a violation of the Thai Harmful Drugs Act of B.E. 2522.
A charge of joint possession of heroin was also laid against Mr Gruszkowski, the review applicant, who was and is an Australian citizen (T7: 73, 90). Mr Gruszkowski also pleaded guilty to this charge in the Thai Criminal Court on 8 July 1997 (T: 102). Mr Gruszkowski was further charged with possession of an unlicensed revolver (T7:102).
The charges brought against both Mr and Ms Gruszkowski arose from events which will be described in more detail below. Following their guilty pleas the Thai Criminal Court convicted both Mr and Ms Gruszkowski on the charges of possession of heroin for sale and they were sentenced to be executed (T7: 110). Mr Gruszkowski was also convicted on the unlicensed firearm offence and sentenced to imprisonment for four months (T7: 110). As a result of their guilty pleas to the heroin charges Mr and Ms Gruszkowski's death sentences were then commuted to life imprisonment (T7: 110).
While still serving their respective prison sentences the visa and review applicants were formally married on 11 August 1995 (T6: 56; T7: 80). In June 1996 Mr Gruszkowski was released from prison after receiving a Royal Pardon from the King of Thailand in recognition of his 50 years on the Thai throne (T14: 151; transcript 7 March 2000: 71). On 14 August 1996 Ms Gruszkowski's sentence was commuted from life imprisonment to a term of 40 years imprisonment (T7: 124). On 5 June 1998 Ms Gruszkowski was granted a Royal Pardon for her release following a petition made by her husband to the Thai monarch (T7: 124). Ms Gruszkowski was released from prison on the date of receiving the Pardon (T10: 130).
On 10 July 1998 Ms Gruszkowski made an application for a spouse visa in order to migrate to Australia. The application was lodged at the Australian Embassy in Bangkok, Thailand (T6). On 29 April 1999 a delegate of the Minister, Ms Elizabeth Gibas, made a decision refusing the grant of a visa to Ms Gruszkowski. In reaching this decision the Minister's delegate noted that the relationship between Mr and Ms Gruszkowski had been assessed to be both genuine and continuing. In her written reasons for refusing a visa to Ms Gruszkowski the Minister's delegate stated, in part, the following:
Factors which may lead to a finding that the applicant is not of good character:
· Seriousness of the offence, which in this case relates to possession of a large quantity of prohibited drug. Ms Gruszkowski and her spouse (the sponsor) were convicted of possession of 5 kilograms and 479.2 grams of heroin.
· Severity of sentence. Ms Gruszkowski was sentenced to life imprisonment by the Criminal Court on 8 July 1991. The sentence was affirmed by the Court of Appeals on 28 December 1998. Ms Gruszkowski received the Royal Pardon and her sentence was initially reduced to 40 years imprisonment (Royal Decree of 1996). Following a petition to His Majesty the King Ms Gruszkowski received Royal Pardon and was released on 8 June 1998, having served 8 years in prison.
· At the time of the offence (August 1990) the applicant was an adult (33 years old) and therefore she was fully responsible for her actions.
· Insufficient time has elapsed since the applicant's release in June 1998, for her to demonstrate that she has reformed.
Factors in favour of the applicant
· There is no indication that the applicant has re-offended since her release from prison on 05.06.1998.
· The applicant disclosed her conviction in the migration application and has provided the Certificate of Personal Record from the Special Branch of the Royal Thai Police Department, as well as a transcript of the Criminal Court hearing of 8 July 1991.
· The sponsor, in a written statement of 09.07.1998 and the applicant during the interview at the Australian Embassy in Bangkok on 10.02.1999, maintained that only the sponsor was involved in drug trafficking and that the applicant had no knowledge or involvement in these activities. They have both stated that the applicant only found out about the sponsor's activities on the night of his arrest, when he realised that he was being followed and sought her assistance in concealing the drugs. They stated that they both pleaded guilty, as in the event of a non-guilty plea, they ran a risk of being sentenced to death (this is confirmed by the transcript of the Court hearing).
· There is no indication that since her release from prison on 5 June 1998, the applicant has engaged in any criminal activity.
Conclusion
I have considered the above factors and find that the factors which may lead to a finding that the applicant is not of good character outweigh the factors in favour of the applicant. Given the type of the offence, community attitude towards drug trafficking, and the severity of the sentence imposed by the Courts, notwithstanding the applicant's and the sponsor's claims of the applicant's innocence, I consider that, on the balance of probabilities, Ms Gruszkowski is not of good character under sections 501(2)(a)(i) of the Act.
(T15: 154-155)On 26 May 1999 Mr Gruszkowski, the review applicant, appealed to the Tribunal the delegate's decision to refuse the grant of a visa to his wife (T1).
LEGISLATIVE AND POLICY PROVISIONSSection 501 of the Act is the key legislative provision relevant to Ms Gruszkowski's case. This section was amended by Parliament in a substantial way after the Minister's delegate made the decision to refuse Ms Gruszkowski residency status in Australia. However, it was acknowledged by both of the parties that, as a result of s32 of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, this amendment did not affect the present proceedings in any way, and that the earlier version of s501 applied to the case.
Part 2 of Schedule 1 to the Migration Regulations (the Regulations) prescribes the relevant visa subclass as 309 (Spouse (Provisional)). A primary criterion for the granting of a subclass 309 visa, which is to be satisfied at the time of making a determination, is the public interest provision contained in Clause 4001 of Schedule 4 of the Regulations (T3). This criterion states:
4001.
(1)The applicant meets the requirements of subclause (2),(3) or (4).
(2)An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.
(3)An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence if insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.
(4)An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa.
The relevant parts of the earlier version of s501 of the Act, as at 31 May 1995, provide the following:
501.(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b) The Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii)…
(iii)…
(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2)This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
In addition to these legislative and allied provisions the transitional arrangements referred to in the Migrational Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 also state that a direction given by the Minister that was in force prior to 1 June 1999 has effect after that date as if it had been given under the amended version of s499 of the Act. Section 499,
in its amended version, provides, in part:
499(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) …
(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).
…
The Minister issued "General Direction - Visa Refusal s501 - No.5" (the Ministerial Direction) on 25 November 1997 (T5). That Direction provides, in part, that:
When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct and complicity with others who are involved in, or connected with, organised criminal behaviour.
The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:
where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community; …
where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.
Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501. …
If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);
if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and
in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.
whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act.
It should also be noted that in addition to the Ministerial Direction the respondent's Migration Series Instructions (MSI) 164 incorporates Ministerial policy and provides guidance as to the interpretation of s501 of the Act. The latest relevant edition of this document was issued on 27 April 1997 (T4).
ISSUESThe principal matter of dispute between the parties is whether or not Ms Gruszkowski satisfies the required public interest criteria specified in the Regulations which would entitle her to be granted a subclass 309 visa. On behalf of the respondent it was contended that Ms Gruszkowski did not meet these requirements because she was a person who was not of good character, based on her criminal conviction for trafficking in heroin (s501(2)(i) of the Act) and also because of her association with her husband, the review applicant, who was convicted of drug trafficking in Thailand at the same time as his wife (s501(2)(b) of the Act).
In its original Statement of Facts and Contentions the respondent had also sought to rely on the provisions of s501(1)(b)(i) and (iv) of the Act, contending that should Ms Gruszkowski be permitted to enter Australia there was a reasonable likelihood that she would engage in criminal conduct in this country (s501(1)(b)(i), and that she would also represent a danger to the Australian community because of her potential to become involved in activities that were disruptive to that community (s501(1)(b)(iv)). However, during the course of the hearing Ms Taverner, on behalf of the respondent, stated that no reliance was now being placed on these additional contentions (see Transcript 8 March 2000: 88).
It is well established that in considering the issues raised under s501 of the Act, two stages are involved. First, the Tribunal must consider whether it is satisfied that Ms Gruszkowski is not of good character. If it reaches an adverse finding about this issue then the Tribunal must then consider the residual discretion which is vested in it by s501 to not refuse the grant of a visa to a person whom it has found not to be of good character.
EVIDENCE
Thai Connections
In his personal testimony to the Tribunal Mr Gruszkowski said that he had first met his future wife during the course of a visit to Thailand in 1987. At the time Mr Gruszkowski said that he had been involved in a jewellery business which consisted largely of purchasing opals in Australia and selling them in what was then West Germany. This jewellery business, conducted under the trading name of The Jantar Trading Company, and in partnership with a Mr Jakovski, also involved stopovers in the Thai capital, Bangkok, to buy local sapphires and rubies. These stopovers occurred on a frequency of about two to three times each year.
Mr Gruszkowski said that after he had formed a relationship with his future wife she became aware of his jewellery business activities. In 1990 the couple jointly purchased a house in Bangkok using monies supplied by Ms Gruszkowski's father who had recently died, and funds obtained by Mr Gruszkowski after the sale of a taxi licence that he had owned in Australia. The house was in his wife's name because foreigners were not permitted to be the official owners of houses in Thailand (see in general Transcript 7 March 2000: 12-29).
In her personal testimony to the Tribunal Ms Gruszkowski confirmed that she had met her future husband in Bangkok in about 1987. In an earlier interview with Ms Elizabeth Gibas, the Senior Migration Officer at the Australian Embassy in Bangkok, Ms Gruszkowski had provided the following details about the way in which this relationship had developed with her future husband:
Record of interview conducted senior migration officer, Elizabeth Gibas (eg) with the applicant, Ms Vinghpan Gruszkowski (yg) on 10.02.1999 (no interpreter required)
Applicant's identity confirmed. Purpose of interview explained, namely to assist in the assessment of the relationship and to gather information in relation to the applicant's ability to meet the character requirement. Verbatim notes on f.85-90.
eg When met Andrew (sponsor)?
yg About 12 years ago.
eg Where?
yg In the bar where I worked, in Sukhumvit area.
eg How long after meeting did you become close?
yg About 3-4 months. He was coming to Thailand often, he used to take me from the bar for a few days. First he was my customer (1989). About 2 years after I met him he bought me a house, I stopped working and lived with my son. Mr Gruszkowski was giving me money,about 5000 Baht every month.
eg How often was he coming and for how long staying?
yg About every 2-3 months,staying 1-2 weeks.
eg Did you know what work was he involved in?
yg I knew he was buying and selling gems; opals from Australia, sapphires, rubies from Thailand.
eg Did you know he was involved with drugs?
yg I found out on the night of the arrest; he had two bags, I asked what was in them, he told me: heroin, I did not want to keep it, took the bags to my friend's place in Pratunam; on previous occasions he also had big bags with him, but they were always locked; I never saw what was inside.
eg How long before your arrest you started living together?
yg About 2 years, first in a rented apartment, but it was too small, he rented a bigger apartment for me, then he bought me a house.
(T14: 150)
Involvement with Drugs
As noted by Ms Gibas at her interview with Ms Gruszkowski, and confirmed by Ms Gruszkowski in her personal testimony, she claimed not to have been aware of Mr Gruszkowski's involvement with drug related activities until shortly before both she and her future husband were arrested by Thai law enforcement authorities in August 1990. Mr Gruszkowski told the Tribunal that he had first decided to get involved in drug trafficking activities when he met somebody on a plane on the way to Europe in 1989. He said that he had got into a conversation with this person sitting next to him and had explained to him the nature of his jewellery business, his relationship with Ms Gruszkowski in Thailand, and his stopovers in Bangkok. The man then asked Mr Gruszkowski if he would be interested in taking care of illegal drugs for a period while he was staying in Bangkok.
Mr Gruszkowski said that on two occasions prior to his arrest in August 1990 this man had called and arranged for him to hold drugs on his behalf (transcript 7 March 2000: 29-30). Mr Gruszkowski said that when he met up with the person who was to receive the drugs form him the meeting usually took place in a hotel. Mr Gruszkowski said that he had received a total of about US$10000 for his assistance in these drug transactions (transcript 7 March 2000: 75-76).
Mr Gruszkowski also said that when he was acting as a custodian for the drugs he had kept them hidden in his home inside padlocked leather bags. He had only told his wife about his drugs activities several hours before they were both arrested by the authorities at about 0800 hours on 31 August 1990. Mr Gruszkowski said that he had told his wife because he believed that he was being followed by the police and that he wanted to remove the drugs from their house and take it to another safe place with her assistance (see transcript 7 March 2000: 14-15).
After telling his wife about the presence of drugs in their house Mr Gruszkowski said that they then took the bags containing the drugs to the apartment of a friend of his wife. This friend was not told about the true contents of the bags. A few hours later the arrests took place of Mr and Ms Gruszkowski by law enforcement officials who included, according to Mr Gruszkowski's testimony, an Australian Federal Police (AFP) officer (transcript 7 March 2000: 16-17). Mr Gruszkowski said that this AFP officer had asked the Thai police present to let his wife go but they refused to comply with this request.
Following this encounter with the AFP officer, and their arrest and charging, Mr Gruszkowski said that he had been visited in prison by an Australian friend, Mr Andrew Mrowiec. Mr Gruszkowski said that he had told his friend about this AFP officer's request and also that it was a tragedy that his wife was facing these charges when she had not been involved in his drug related activities. Mr Mrowiec, in his personal testimony to the Tribunal, said that he recollected this conversation with Mr Gruszkowski at the prison, and that Mr Gruszkowski had been very upset about his wife's arrest. Mr Mrowiec said that he had also visited Ms Gruszkowski in prison and that she had expressed shock at what had happened and surprise because she had not had any suspicions about her husband's drug activities (transcript 7 March 2000: 80-81).
Mr Gruszkowski was cross-examined at some length by Ms Taverner concerning his drug related activities and in particular about sums of money that had been deposited to his bank account in Thailand in the period leading up to his arrest. Mr Gruszkowski denied that these sums were the proceeds of his criminal activities. Mr Gruszkowski also denied having known a Mr Kaspagaram Vergee, an alleged Australian based drug trafficker, who at the request of Australian law enforcement authorities was placed under surveillance by Thai police shortly before Mr Gruszkowski and his wife were arrested. Mr Gruszkowski did admit that both he and his wife had met a man who they now knew to be Mr Vergee at a Bangkok hotel on 29 August 1990. However, that meeting had been an innocent one and at no stage, according to Mr Gruszkowski had Mr Vergee been involved in the drug transactions (see Transcript 7 March 2000: 36-42).
In relation to his possession of an unregistered firearm Mr Gruszkowski said that he had bought a gun from a taxi driver during 1989 as a security measure. The gun had been kept in a safe in his home. In her personal testimony to the Tribunal Ms Gruszkowski confirmed the purchase of the gun by her husband as a form of protection of the house against robbery. In relation to her awareness of her husband's drug trafficking activities Ms Gruszkowski said that she had first become aware that he was holding drugs in the house when he requested her assistance some hours before they were apprehended by the police. Ms Gruszkowski gave the following description of what occurred at this time:
MR PHILLIPS: At what stage did you become aware that your husband was involved in holding drugs?
THE INTERPRETER: On August he drove out of the house and then he - - -
THE WITNESS: Come back.
THE INTERPRETER: - - - he came back and he said he have trouble and he asked me to help him.
THE WITNESS: And I said, "what's wrong?" And he said he – Police follow him. I said, "why?" He said because he was with something and I said, "just tell me … one thing." He said something like: "not legal," you know. … opal, diamonds, something like that, and - and then he tell me - he told me he had involved with the drug. I just scared, you know, I'm very, very scared because my son with me too, you know, and he said - he said: "well, what - what I can help?" He said, "move to some place or some place," you know, and at the time I have only one friend, my close friend. And I said, "no, I can't do that. I don't want to involve with this. I have a son to take care," I said this. He said: please just help him, you know.
I had to think about 20 - 20 minutes, you know, just what - what I can help him, you know. And he had really kind to me too, you know, he help me to have a good life, better than before I never met him. And then I said, "okay." I said to - to my friend, but I didn't tell my friend what is inside, you know. I just say: oh, we - we'll go to some - some place." And that … is … something very important for us, you know, and she is my close friend, she doesn't ask much because we - we trust each other, we known for long time.
…
MR PHILLIPS: Your emotional reaction?
THE WITNESS: Pardon? I very, very scared because I know that is very, very strong … and I think about my future, you know, I think about my son, that is how my son is 14 years old, you know, and he's boy. If all this come, he get trouble, might get trouble, every - and how - how to take care because I have to take care of my son for long time. I'm separated with his father when he 4 years ago, I take care of him by myself. At the time I'm very, very, you know, no work and what to do, what to do and - and he just come to: please help me, please help me, and I don't know what to do. He - he just tell me: oh give … quick … place or some - some place, you know.
And he does give me too, you know, and I just get ready when he scared of them because in Thailand about it is very strong … I just think many thing, you know.(transcript 8 March 2000: 13-15)
Criminal Court Proceedings
As noted earlier both Mr and Ms Gruszkowski pleaded guilty to the charges brought against them following their arrest on 31 August 1990. The Tribunal also had a translation of the court proceedings in their criminal case (T: 102-110). This case involved three defendants - the Gruszkowskis and also Ms Gruszkowski's friend in whose house the two bags containing drugs had been deposited shortly before their arrest. The friend pleaded not guilty to the charge brought against her.
The specific charges brought by the Public Prosecutor in the case were that:
… on 30 August 1990 during night time, after midnight and continued to day time of 31 August 1990, the accused have jointly committed offences against the law, especially the second accused committed various different offences against the law. These were : (a) The three accused jointly having in possession heroin hydro chloride, which is salt of heroin and considered harmful drugs, totalling four bags, six jars, 14 bars and 495 capsules, with net weight 5,479.2 grams (Five Kilograms Four Hundred Seventy-Nine Grams and Two Hundred Milligrams) – equivalent to pure heroin hydro chloride 4,475.3 grams (Four Kilograms Four Hundred Seventy-Five Grams and Three Hundred Milligrams) for sales, an act of violation of the Harmful Drugs Act of B.E. 2522. (b) The second accused has in his possession a short gun, revolver .38, licence No. ChorNor. 1/3926, serial No. K 319190, which belongs to other person who has obtained a licence for possessing and using it from the local registrar, and six bullets of size .38. The said gun and bullets could be fired, and were in possession of the second accused without obtaining a licence from the local registrar as required by law.
(T7: 102-103)The description of the criminal case went on to note that the Thai authorities had acted against the three accused after receiving a request for cooperation from Australian law enforcement officials in "monitoring an Australian drug dealer, namely Mr. Kaspagaram Vergee, who would be travelling to contact with drug dealers in Thailand. Mr. Kaspar was travelling by Quantas [sic] Airlines, flight QF1, and arriving Thailand on 23 August 1990 during night time" (T: 103).
Upon his arrival Mr Kaspar was put under police surveillance and it was this surveillance which revealed his meetings with the Gruszkowskis (see T: 103-104). Following the deposit of the two bags containing the drugs at the friend's house, Mr Gruszkowski was observed by the police meeting with Mr Kaspar for a period. Mr Kaspar then went to the airport in order to leave Thailand. He was searched by officials but no illegal articles were found on him. Searches were then conducted at the friend's home where:
Two brown bags were found hidden under the bed of the first accused, containing white powder heroin, clear capsules, condoms, red plastic tubes, clear glue tape, red liquid plastic for coating capsules, equipment for packaging heroin and a short gun, revolver .38, … and six bullets of size .38.
(T: 105)A second search was then conducted at the Gruszkowski's home where:
Empty clear capsules, small plastic bags, and empty plastic bags for containing heroin in the brand of two lions and the earth, were found hidden in the house of the second accused and the third accusd [sic].
(T: 105)Having reviewed the evidence before it the Thai criminal court concluded as follows:
The prosecutor's evidence were [sic] solid and it was believed that the second accusecd [sic] and the third accused have committed the offences as charged. As for the first accused, there was no witness at the time that the second accused and the third accused took the bags containing the exhibited white powder heroine [sic] to the first accused for safe keeping.
(T: 108-109)The criminal court determined that the Gruszkowskis should be convicted of the offences to which they had already pleaded guilty while they dismissed the charge against the friend.
Prison Performance and RehabilitationReference has already been made to the sentences imposed upon the Gruszkowskis, and their subsequent commutation and eventual pardons (see paragraph 8 above). In her interview with Ms Gibas, Ms Gruszkowski said that during the time that she was in prison her son, who was 14 at the time of her arrest, had been cared for by his paternal grandfather. Ms Gruszkowski also told Ms Gibas the following about her relationship with her family and her husband during the time that she was still in prison and following his subsequent return to Australia:
yg … father has another wife and kids; I have no family; my mother separated from my father, I was looked after by my father and stepmother, I ran away from home when I was 17; I met my ex-husband, we lived together until my son was 4, then we separated; ex-husband had another woman; since I ran away from home I have had no contact with my brothers and sisters; they are a good family, I am the one who is not good; I am ashamed to contact them; I first worked at the gas station (about 10 years), then - real estate, selling condos; when my son was about 9 I started working in the bars.
eg Were you a drug user yourself?
yg Never
eg How did you maintain contact (with Andrew) when you were both in prison?
yg We were writing letters (a large number of letters from pa to sposnor [sic] and from sponsor to pa sighted)
eg How was it possible for you to marry while you were in prison?
yg My husband arranged it through the embassy, I came to Bang Kwang (men's prison) and we married there. As soon as marriage was registered, we had to return to our respective prisons.
eg When was your husband released?
yg In June, 2 years before me (1996)
eg Did he go to Australia after the release?
yg Yes, he wrote to me first from the Immigration detention centre and then from Australia.
eg What was he doing after return to Australia?
yg Taxi driver; he has recently bought his own cab (sent me photos)
(T: 151)In the course of her personal testimony Ms Gruszkowski said that prior to her arrest in 1990 she had never been in trouble with the law and had worked hard to take care of her son. Her son, who is now 24, was employed driving a motor cycle cab. Since leaving gaol Mr Gruszkowski had been supporting her with funds sent from Australia. She had been trying to work making Thai handicrafts and had almost completed a university degree in home economics. She had discussed with her husband whether or not they would live together in Thailand, Poland or Australia. She said that they had gone to Poland and that she had found it very difficult to cope because of the language problems, the climate and the food. Her husband also had difficulties living in Thailand since he could not speak the language, found the weather depressive and was also not able to find work in the country (see in general Transcript 8 March 2000: 22-36).
A character reference was also provided to the Tribunal on behalf of the visa applicant (A1). This reference, dated 25 February 2000 and translated from the Thai language into English, was provided by Mr Phra Maha Boonsom Chitpoonyo, a Buddhist Monk and Assistant Abbot of a Temple in the area in which Ms Gruszkowski resided in Bangkok. The reference noted that Ms Gruszkowski:
… is having very good behaviour and she always obeys to the society rules. She
believes and stricts to the Buddhist religion.
(A1)
CONSIDERATION
Good Character Issue
Case Law, MSI, Ministerial Direction and Submissions
The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (hereinafter Irving). As was stated in Irving, good character for the purposes of s501 refers to the "enduring moral qualities of a person and not to the person's good standing, fame or repute of that person in the community" (at 431-432). In Baker the Full Federal Court also had the following to say in regard to the approach to be taken when assessing a person's character in the light of their past criminal convictions:
Of course, all of the conduct under scrutiny for the purposes of s501(2)(a) is to be examined in order to see what light it may throw on the question whether the decision-maker "is satisfied that the person is not of good character". Even criminal conduct may not lead to that conclusion, perhaps because of the nature of the crime (certainly some absolute offences need involve no moral obloquy), or perhaps because of the lapse of time since the offence or the existence of positive evidence of reformation. The words "good character" in the section should, as Lee J pointed out in Irving (at 94), be understood as "a reference to the enduring moral qualities of a person". Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
(at 471-472)
It is clear that it is the Tribunal's responsibility to have regard to both the MSI and the Ministerial Direction when determining whether or not Ms Gruszkowski is a person of good character. It is also the Tribunal's responsibility to make a determination as to her character at the time of the reaching of its decision (Baker: 194). As noted earlier it was the respondent's contention that Ms Gruszkowski was not of good character on the basis of her past criminal conduct, and also her association with Mr Gruszkowski who had himself been involved in criminal conduct. In her submissions, made on behalf of the respondent, Ms Taverner referred to the Ministerial Direction and the expressed view of the Government that non-citizens should comply with expected standards of behaviour. Ms Taverner submitted that the heroin offence of which Ms Gruszkowski had been convicted did not reflect a compliance with these standards. Ms Taverner also pointed to the comparative and severe sentences which could be imposed under the Customs Act 1901 (Cwth) for similar offences, and to judicial attitudes regarding the illicit trade in drugs: R v Wong and Ng (1988) 39 A Crim R1.
Ms Taverner further contended that the objective facts in the case made this a particularly serious offence. Even if the Tribunal were to assume that Ms Gruszkowski was not involved in the commission of the offence for which she was convicted, she was at least a party to concealing the drugs once she had learned of their existence. Her actions at the time were most determinative of her general character. The only evidence of recent good conduct on Ms Gruszkowski's part was her partial completion of a university degree. She had not been involved in any remunerative employment since leaving prison and was being supported totally by her husband.
Apart from Ms Gruszkowski's past criminal record revealing her as a person who was not of good character the respondent also contended that Ms Gruszkowski's continuing association with her husband, who had been involved in serious criminal conduct, further established that she was a person who was not of good character. Ms Taverner submitted that a marital relationship fell within the meaning of an "association" in s501(2)(b). Relying upon s15AA of the Acts Interpretation Act 1901 this construction of the statutory language promoted the purpose underlying the Act. The purpose of the Act was to regulate in the national interest the entry into and presence within Australia of non-citizens. The fact that Ms Gruszkowski was married to Mr Gruszkowski was a factor which could increase the risk of their association giving rise to the commission of further criminal conduct. Ms Gruszkowski had admitted in her evidence that she could not really say no to her husband, and wanted to help him, and Mr Gruszkowski had also testified that Thai women did not tend to question the actions of their husbands. Thus notwithstanding the remorse that Mr Gruszkowski had expressed for his behaviour in regard to his wife he might still, through his close association with his wife, represent an increased risk of possible criminal behaviour in the future.
In his submissions made on behalf of the applicant Mr Phillips contended that the Tribunal should on the basis of all of the evidence before it find that Ms Gruszkowski at best played a very minor role in her husband's criminal activity. Mr Gruszkowski had made a full and frank disclosure in his testimony to the Tribunal of his own involvement in the drug offences which was not inconsistent with the evidence summarised by the criminal court. The Tribunal should also take into account the fact that the respondent had constructive notice of the existence of exculpatory evidence in the form of a statement by an AFP officer regarding the lack of involvement by Ms Gruszkowski in the drug offence. The applicant had sought to obtain from the AFP any documents and allied information about what was clearly a joint Thai and Australian police operation targeting a suspect who had arrived from Australia. No documents had been produced by the AFP in response to this request, nor had the respondent sought to use its influence to obtain this additional evidence. Certain inferences should therefore arise from these circumstances including the rule in Jones v Dunkell (1959) 101 CLR 298 that where evidence was not produced there could be an inference that the witness or evidence would not assist the Crown, or in this case the Minister.
In addition Mr Phillips also contended that Ms Gruszkowski's conviction no longer existed because it had been quashed by a full Royal Pardon. There was no longer either a conviction or sentence in place and there was also evidence from an independent authority, an Australian policeman, who had been involved in the investigation of the crime and who had formed a view of Ms Gruszkowski's role in the matter which was more likely to reflect the Australian legal position than that of the Thai law on the subject. On the basis of this evidence Mr Phillips submitted that Ms Gruszkowski could not to any degree be termed a serious criminal, nor was there anything to suggest that she was a recidivist.
In regard to the contention made by the respondent that Ms Gruszkowski should also be found to be not of good character because she fell within the framework of s501(2)(b), Mr Phillips submitted that such a finding would amount to discrimination on the grounds of marriage alone, or on a relationship based on marriage, which infringed the provisions of s6 of the Sexual Discrimination Act 1984 (Cwth); see also Waterhouse v Bell (1991) 25 NSWLR 99.
Mr Phillips said that if the Tribunal did not accept this particular contention then it should have regard to Mr Gruszkowski's conduct in the case. While Mr Gruszkowski had also received a full Royal Pardon he had admitted in his personal testimony to the Tribunal that he had been involved in criminal conduct. However, he had also expressed remorse and regret about his actions and had not re-offended since his release from prison in 1996. Thus he was not a hardened and convicted criminal who had dedicated himself to a life of crime. All the indications were quite to the contrary. It could not therefore be asserted that by associating with her husband Ms Gruszkowski represented a threat to the Australian community should she be allowed to come to this country.
The Tribunal's ViewsThe uncontroverted evidence before the Tribunal is that Ms Gruszkowski, together with her husband, pleaded guilty to a drug related offence which resulted in them both being sentenced to death. While these sentences were ultimately commuted and pardoned it is quite apparent that the nature of the criminal conduct admitted to by Ms Gruszkowski falls at large within the types of behaviour identified in the Ministerial Direction as being of significant concern to the Australian community. As the Ministerial Direction states:
Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under s501.
Despite the extreme severity of the initial sentences imposed under Thai criminal law upon Ms Gruszkowski and her husband, and the fact that Ms Gruszkowski spent a total of about eight years in prison before being pardoned, the Tribunal has also been presented with evidence that suggests that Ms Gruszkowski's actual involvement was minimal in the drug related activity that led to her conviction. The nature of this evidence has been set out earlier in this decision. It consists principally of personal testimony given by Ms Gruszkowski and her husband, supplemented by the description given by the Thai criminal court of the circumstances surrounding the commission of their respective offences. This description, translated in a rather halting and deficient manner from Thai into the English language, indicates that the Gruszkowskis only came to the attention of the Thai authorities as a result of a mutual assistance request from Australian law enforcement officials engaged in an investigation of an Australian citizen, a Mr Kaspagaram Vergee, who was suspected of involvement in drug trafficking in Thailand.
Neither party presented to the Tribunal any evidence to either counter or dispute this Australian linkage with the Gruszkowski's case. However, on 24 February 2000 the applicant's legal representative gave notice to the respondent's officials to produce at the hearing of this matter:
1.All reports notes and other correspondence made by the Australian Federal Police or other agents of the Commonwealth in respect of the arrest and charging of Andrew Gruszkowski, the review applicant, and Yingphan Keeranon (as she then was), the visa applicant, on the 13 August 1990 for the possession of illegal drugs. Noting that the surveillance and arrest was a joint Australian and Thai operation.
2.Contact details, including name and work contact phone number or otherwise of the Commonwealth agent present at the time of arrest.
(A-4)
On 1 March 2000 a summons to produce documents was also issued by the Tribunal, on behalf of the applicant, seeking production of this material from the AFP (A8). On 7 March 2000, the first day of the hearing of this matter, a response was received from the AFP indicating that they had only received the summons on that date and were unable to respond to the requests for the documents contained within the schedule. Following this advice no request was made by either party to adjourn the hearing in order to have the summons re-served.
Mention is made of these attempts to secure additional evidence from AFP sources because of the subsequent contention, made on behalf of the applicant, that the Tribunal should have regard to the evidentiary principles commonly termed "the rule in Jones v Dunkell": see Cross on Evidence Australian edition 1087-1090. Without summarising these principles in detail it was the essence of Mr Phillips' contention that this failure by the respondent to either call any AFP witnesses or to tender any documents or other materials relating to the investigation involving Mr and Ms Gruszkowski allowed an inference to the drawn that the uncalled evidence would not have assisted the respondent's case.
The Tribunal is not, of course, bound by the rules of evidence including such an inference drawn from the rule in Jones v Dunkell. The Tribunal is, nonetheless, bound to act in accord with the notions of procedural fairness and natural justice in the way in which it conducts its merit review. The Tribunal also has inquisitorial powers which allows it to seek further and additional evidence if it believes it would be of relevance and assistance to the determination of a particular issue. The Tribunal was not persuaded that this was a situation where it should seek to exercise this inquisitorial power, given both the nature of the evidence that was already available and the lack of any desire by either of the parties to delay the hearing further in order to explore whether or not any additional information might be made available from the AFP.
On the basis of both the documentary material and the personal testimony that was made available, the Tribunal is satisfied that Ms Gruszkowski's involvement in the drug offence to which she pleaded guilty was of a lesser nature than that of her husband, even though both received initial identical sentences of death, and Ms Gruszkowski eventually served a longer term of imprisonment than her husband. In its own description of the charges brought against the Gruszkowskis and their friend, the Thai criminal court made it clear that in their joint enterprise it was the "second accused" (Mr Gruszkowski) who was "especially" involved in the commission of the offences (see paragraph 30 above and T7: 102-103). This finding was in accord with the personal testimony given by Mr Gruszkowski which has been described earlier, and with the claims made by Ms Gruszkowski about her level of involvement in the heroin related offence. The Tribunal found Ms Gruszkowski to be a credible witness who did not seek to deny any responsibility for what had occurred but gave a convincing account of how, under what she perceived to be a dire situation that could destroy all that she had worked so hard to achieve for herself and her son, she gave assistance to her husband in concealing the bags containing the drugs at the house of an unsuspecting friend. She did deny any prior knowledge of the drug trafficking activities engaged in by her husband. Again, the Tribunal found this denial to be credible in view of the nature of the legitimate jewellery business conducted by Mr Gruszkowski, of which she was aware, and her husband's stated wish to keep her unaware of his involvements with the drug trade.
The Tribunal also found, in general, Mr Gruszkowski to be a truthful witness so far as the description he gave of the involvement by his wife in his criminal activity and the immediate circumstances which led to him seeking her help to take the drugs from their house to a safer location, after he realised that he was being followed by the police. The Tribunal also has no reason to doubt the veracity of the account given by Mr Gruszkowski about the presence of an Australian police official, presumably an AFP officer, at the time of his arrest in company with his wife. In the absence of any contrary evidence led by the respondent in regard to this issue, the Tribunal also accepts that this Australian law enforcement officer did make some form of intervention with his Thai colleagues about allowing Ms Gruszkowski to go free because of her lack of involvement in the offence. Further support for the existence of such an intervention came from the personal testimony provided by Mr Mrowiec who spoke with both of the Gruszkowskis in prison shortly after they were arrested. Mr Mrowiec's testimony on this point was not challenged by the respondent.
It is noteworthy that in reaching this conclusion about Ms Gruszkowski's relatively minor and accessorial role in the heroin offence to which she pleaded guilty the Tribunal did have the benefit, unlike the Thai criminal court, of hearing the personal testimony of two of the accused persons charged with that offence. Without being made aware in any detailed way of the practises and procedures applying to guilty pleas in Thai criminal courts the Tribunal was informed by Mr Gruszkowski that he, together with his wife, had been unable to speak at the hearing of their case by the Thai criminal court. It would also seem that by pleading guilty to the offence as charged a mandatory death sentence, commuted subsequently to life imprisonment, was the only penalty available to the court. If the matter had been determined by an Australian criminal court there would have obviously been an opportunity for both Mr and Ms Gruszkowski to provide personal testimony and make representations to the court in regard to their respective levels of responsibility and the appropriate penalties that should be applied. An Australian court, in a comparable situation, would in the circumstances described have undoubtedly imposed quite different sentences upon Mr Gruszkowski and his wife which reflected their differing levels of criminal responsibility. In Ms Gruszkowski's case, as a person with no previous criminal convictions, it would be most unlikely that she would receive the equivalent of an eight year sentence of imprisonment for her involvement in this drug activity.
Subsequent to her sentence to death, commuted to life imprisonment, and then to a 40 year term of imprisonment, and finally to a complete pardon, Ms Gruszkowski was kept in custody. The Tribunal had before it very little information about this period of custody. It is a matter of common knowledge, based on quite frequent media accounts of Australian citizens like Mr Gruszkowski caught up in drug related offences in Thailand, that the conditions experienced by persons imprisoned in that nation have been quite deficient compared with those available in comparable Australian correctional institutions. Ms Gruszkowski appears to have survived this experience and to have taken steps to rehabilitate herself while in custody. These steps included commencing a university degree. She was able to make arrangements for the care of her son and also cemented the relationship with her husband through marriage while both of them were still serving their respective sentences.
The Tribunal was impressed with the way in which Mr Gruszkowski acknowledged the hurt and suffering that he had inflicted on his wife through his actions, and also his expression of remorse and desire to make amends for his past misconduct. It would seem that it was through Mr Gruszkowski's own endeavours that he petitioned the King of Thailand to provide a pardon to his wife. This pardon was, as noted, finally issued and the Gruszkowskis were reunited. While they are not living together at the present time both Mr and Ms Gruszkowski described how they had explored a number of ways in which they could maintain their relationship either in Poland, Thailand or in Australia. It was not a matter of any dispute between the parties that the Gruszkowskis shared a caring and continuing genuine relationship with one another. On the basis of this evidence the Tribunal is satisfied that even though Ms Gruszkowski's past criminal conduct displayed the attributes of a person of bad character, that conduct occurred almost a decade ago and since that time Ms Gruszkowski has, through a long period of imprisonment and subsequent release and pardon, displayed the attributes of a person who is now rehabilitated and of good character. Her relationship with her husband spans more than 13 years. She has also provided care and support, to the best of her ability, to her son by a previous relationship. Although she is not at present employed, she has been seeking to obtain tertiary qualifications which should enhance her occupational choices and opportunities in the future.
Having reached this conclusion in regard to Ms Gruszkowski's character in relation to s501(2)(a)(i) and (ii) of the Act, the question must still be addressed of whether or not, as contended by the respondent, Ms Gruszkowski should still be judged to be not of good character because of the provisions of s501(2)(b). The relevant parts of the earlier version of s501 of the Act have already been set out in this decision (see paragraph 13 above). As was indicated by the Full Federal Court in Baker when construing the meaning of s501(2)(a) the Tribunal is not bound to anchor its decision in one of the matters mentioned in sub-paragraphs (i) and (ii) (at 471). Rather, in the words of Baker:
We think the key to the understanding of subs 2(a) is to be found in its object – satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the minister is required, by the phrase "having regard to", to look at the conduct of the person the subject of the inquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that parliament intended anything so unreasonable as a conclusion whether the person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of "general conduct". So the words "having regard to" and the disjunctive "or" must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation.
(at 469)
In the course of making her submissions on behalf of the respondent in regard to the application of s501(2)(b) to the present case the Tribunal raised with Ms Taverner the question whether the use of the disjunctive "or" between subs 2(a) and 2(b) required a similar approach, based on this interpretation provided in Baker. Ms Taverner did not venture an opinion on the matter, suggesting that it remained a moot point. She did, however, pursue her contention that through her association with her husband, Mr Gruszkowski, a person who had admitted his involvement in serious criminal conduct, Ms Gruszkowski should be judged to be not of good character.
As noted, Ms Taverner had also submitted that s15AA of the Acts Interpretation Act 1901 permitted such an interpretation of this provision of the Act. That section states:
1.In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or objective is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Reference to the second reading speech made in the House of Representativesby the then Minister for Immigration, Local Government and Ethnic Affairs when introducing the legislation in 1992 which resulted in the relevant version of s501, shows that it stemmed from a challenge which had been made to a decision to exclude from Australia non-Australian members of the Hells Angels Motor Cycle Club. The challenge prompted closer scrutiny of the then decision making regime for the exclusion of persons of bad character and of persons at large who might represent a danger to the Australian community or a segment of it. The Minister noted that the Bill would provide a basis in the primary legislation for refusing or cancelling visas or entry permits on the grounds of character:
Under this Bill, the Minister will be able to consider whether a person is of good character by reference to a person's actual criminal conduct, his or her general conduct, or by reference to a person's association with any other person, group, or organisation who the Minister has reasonable grounds to believe has been or is involved in criminal conduct. Policy guidance will be developed in due course to assist those decision makers delegated with the power to make decisions under this legislation.
(Hansard, House of Representatives 17 December 1992 4121-4122)Although not referred to by Ms Taverner, MSI-164, paragraph 9.8 deals directly with the policy guidance that has been developed to assist decision makers dealing with the requirements of s501(2)(b) of the Act. Paragraph 9.8 of the MSI states, in part:
9.8 Association with another person, group or organisation – para 501(2)(b)
9.8.1When reaching a conclusion as to whether or not a person meets the character requirement pursuant to paragraph 501(2)(b), the Minister, or a delegate of the Minister, must consider the following three issues:
(i)whether there is an association;
(ii)if there is an association, whether there are reasonable grounds to believe that there is, or has been, involvement in criminal conduct on the part of the person, group or organisation with whom or with which the application is associated; and
(iii)be satisfied that the applicant is not of good character because of that association.
9.8.2In determining if information is sufficient to satisfy criteria (i) and (ii) as specified in 9.8.1, the nature of the information and its source must be considered.
9.8.3In order to satisfy criterion (iii) as specified in 9.8.1, the nature of the association must be considered.
(T:45)
Having regard to the general purpose of the Act as revealed in the second reading speech, as well as to the direct policy guidance afforded by paragraph 9.8 of the MSI, the Tribunal believes that there is every reason to construe the use of the disjunctive "or" between s501(2)(a) and (2)(b) in a way which is not strictly disjunctive but "as a kind of hybrid of disjunctive and conjunctive, equivalent to 'or, or as well', conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to" (Baker at 470). In each of the instances of conduct which are referred to in s501(2) at large - general, criminal and associative - the ultimate matter to which the Tribunal must have regard is to whether or not that conduct shows that the person is not of good character. Thus it is not sufficient to show that, as in Ms Gruszkowski's case, she has an association in the form of a marital relationship with a person, her husband, who has an admitted criminal past. The Tribunal must also be satisfied that Ms Gruszkowski is not of good character because of that association.
The Tribunal has already stated that it is satisfied, having regard to Ms Gruszkowski's overall general conduct, including her past criminal conduct, that she is a person of good character. The Tribunal can find nothing further in her relationship with her husband that would alter this assessment. Further, the Tribunal also finds merit in the submission made on behalf of the applicant that any finding to the contrary would in fact be in breach of the provisions of the Sexual Discrimination Act 1984 (Cwth). The Tribunal does not believe that it was one of the purposes of the legislative amendments made in 1992 to s501 to exclude from consideration the provisions of this anti-discrimination Statute. Indeed, a stated purpose of the 1992 amendment to the Act was to uphold the important values of Australian society which it must be presumed, in the absence of express statutory words to the contrary, to include the promotion of equality and non-discrimination in Australian society.
Mr Phillips, in his submissions, also drew the attention of the Tribunal to the decision of the New South Wales Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99. In that case the plaintiff had applied for a trainer's licence to the Australian Jockey Club (AJC). The AJC subsequently indicated that it had refused the trainer's licence to the plaintiff because she "was married to a person who had been warned off every racecourse in Australia and elsewhere" (at 114). That refusal eventually came under consideration by the Court of Appeal on the grounds that this amounted to discrimination on the basis of marital status contrary to the New South Wales Anti-Discrimination Act 1977, s39(1)(c). Section 39(1)(c) of that Act and s39(1) in general, are for all practical purposes equivalent to the provisions of s6 of the Commonwealth's Sexual Discrimination Act 1984.
In finding that the plaintiff had been discriminated against on the ground of her marital status, in its extended sense, Clarke JA said the following:
That question is whether the Tribunal was bound, as a matter of law, to conclude that the first defendant had not discriminated against the plaintiff on the ground of her marital status (in its extended sense). Unassisted by authority I would think that the answer to the question must be no. She was, on the hypothesis that the finding was as I have indicated, rejected because she was liable to be corrupted by her husband who was a rogue. When one inquires why she was liable to be corrupted by him the answer presented is: "Because she is married to him." That prompts another question, which must be understood in the context that corruptibility is a character weakness: "Why does the fact that she is married to a rogue mean that she is liable to be corrupted by him?"
In circumstances where there was no suggestion that the plaintiff had a relevant character deficiency the answer must be: "Because all wives are liable to be corrupted by their husbands." That is, that corruptibility at the hands of one's husband is a characteristic attributed, or generally imputed, to all married women. A finding of this nature clearly falls within s 39(1)(c).
(at 114)A similar line of reasoning can be applied to Ms Gruszkowski's case. Having been determined to be a person who is of good character the only manner in which that quality could be changed through the effect of s501(2)(b) would be solely as a result of an assumption that she would be liable to be corrupted as a result of her association with her husband. That assumption is one which would clearly fall within s6 of the Sexual Discrimination Act 1984.
Even if this interpretation is incorrect, and s501(2)(b) does extend in the circumstances of this case to a marital association, there is also compelling evidence which suggests that Mr Gruszkowski is no longer involved in criminal conduct. He has also been pardoned for his past criminal conduct. At common law, the effect of a Royal Pardon is stated to be:
To clear the person from all infamy, and from all consequences of the offence for which it is granted …, and from all statutory or other disqualifications following upon conviction … It makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted … and, in the days when crime disqualified a man from being a witness, removed the disqualification …
(Halsbury's Laws of England Vol.6: 479)No direct evidence was provided to the Tribunal regarding the precise legal situation of a pardon granted by the Thai monarch. However, the parties did not dispute that the effect of a Royal Pardon was in general terms similar to that of a pardon at common law. Thus the Royal Pardon granted to Mr Gruszkowski by the King of Thailand in 1996 makes him, for all practical purposes, "a new man". Neither Mr Gruszkowski, nor his wife, should now suffer further discrimination and other adverse consequences as a result of their past conduct and the provisions of s501(2)(b).
CONCLUSIONFor the reasons which have been outlined the Tribunal is satisfied that Ms Gruszkowski, the visa applicant, is now a person of good character for the purposes of s501 of the Act. Having reached this conclusion the Tribunal is not required to consider the exercise of its residual discretion. However, even if the Tribunal had reached a contrary finding that Ms Gruszkowski was not of good character it would still have exercised this discretion in her favour. Ms Gruszkowski has an acknowledged and long lasting relationship with an Australian citizen. This relationship has been severely tested through the separation that she has endured over a significant period of imprisonment, as well as through the present location of her husband in this country while she remains in Thailand. The Tribunal does not believe that Ms Gruszkowski represents any potential threat to the safety and well-being of the Australian community, nor would her presence in this country undermine the strength and integrity of Australia's immigration program. Ms Gruszkowski has been receiving economic and related assistance from her husband for a significant period, and there is no indication that this support will not continue. There is also the possibility that, with her nearly completed tertiary qualifications, Ms Gruszkowski would be able to make a contribution to the Australian community.
The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that YIngphan Gruszkowski meets the requirements of Clause 4001 of the public interest criteria in Schedule 4 of the Migration Regulations and s501 of the Migration Act (1958) for the grant of a subclass 309 (Spouse (Provisional)) visa.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Chappell, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 7, 8 March 2000
Date of Decision 23 May 2000
Counsel for the Applicant Mr D. Phillips
Advocate for the Respondent Ms J. Taverner
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