HILLERBY and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 673

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2010/1509

General Administrative Division           )

Re: Craig Hillerby
Applicant

And: Minister for Immigration and Citizenship
Respondent

DIRECTION

TRIBUNAL:             Senior Member Bernard J McCabe

DATE:                      13 September 2010

PLACE:                   Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application dated 17 August 2010 to read as follows:

The Tribunal sets aside the decision under review and remits the matter to the Department of Immigration and Citizenship for reconsideration with a direction that the discretion in s 501 of the Migration Act 1958 (Cth) not be exercised to refuse Mr Hillerby a visa, and a recommendation that if Mr Hillerby is granted a visa, it is only for a period of 21 days.

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

Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/1509

GENERAL ADMINISTRATIVE DIVISION		)
Re		CRAIG HILLERBY

Applicant

And  MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 17 August 2010

Place Brisbane

Decision The Tribunal sets aside the decision under review and decides in substitution that Mr Hillerby is granted a tourist visa with the recommendation that it be for a limited period of time of 21 days.

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

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – section 501 tourist visa refusal – visa applicant’s son bringing application – visa applicant attempting to visit Australia to attend applicant’s wedding – visa applicant has substantial criminal record – attempted manslaughter – drink driving – perverting the course of justice – primary considerations – seriousness of the nature of the conduct – risk of recidivism – other consideration – emotional impact on applicant – decision under review set aside with a recommendation that the tourist visa be for a limited period.

Migration Act 1958 (Cth), s 501

REASONS FOR DECISION

3 September 2010  Senior Member Bernard J McCabe        

1.Section 501 of the Migration Act 1958 (Cth) says the Minister has the discretion to cancel or refuse a visa. In this case, we are discussing the Minister’s decision to refuse a tourist visa. The Minister’s discretion to cancel or refuse a visa can arise because an individual does not pass the character test. An individual is deemed not to have passed the character test when he or she has a substantial criminal record. That is true of the applicant’s father in this case.

2.The discretion to cancel has been enlivened, which means it is available, but that does not mean it has to be exercised.  I must consider whether that is the right thing to do in all the circumstances of the case.  The discretion is not opened-ended.  When the Minister, and in turn the Tribunal on review, confronts the question, they must have regard to Direction No 41 – Visa Refusal and Cancellation under s 501 (“the Direction”). This is a Ministerial direction, and it is binding upon me. It says there are four primary considerations to which I must have regard when deciding whether to refuse or cancel a visa. There are also other considerations, which are of less weight.

3.The Minister has conceded that only one of the four primary considerations actually applies in this case: the protection of the Australian community. I will deal with that first. The Direction is concerned in particular with serious criminal or other harmful conduct, particularly crimes involving violence. I must look to the seriousness and nature of the relevant conduct and then look to the risk that the conduct would be repeated. 

4.The applicant’s father has a long criminal record starting back in the 1960s. Most of those offences were petty.  Young people sometimes make mistakes.  He was fined small amounts on each occasion.  I will not say the Tribunal is not worried about that conduct, but it must be put in perspective. The more serious matter is, obviously, the attempted manslaughter conviction. A crime involving violence of any kind is taken very seriously. The applicant’s father went to gaol for a substantial period of time. There are also a number of drink driving offences. While the drink driving offences are not as important for present purposes, there is a pattern of offences which is particularly troubling.

5.There was also an offence which involved perverting the course of justice.  That is potentially a very serious matter as well, even though it does not involve violence.  The only explanation we had for that offence was effectively, “I told them the wrong thing about the car” when he was questioned by police when he was pulled up for another matter.

6.The seriousness of the applicant’s father’s conduct is clear enough. But what of the prospect of bad behaviour occurring if he were in Australia on a tourist visa?  

7.The fact that there is a pattern of behaviour over a long period of time indicates a risk that the conduct may be repeated, or suggests a person who does not make good choices and has not made them over a long period of time. Certainly in recent times, and perhaps because of a greater level of maturity that his wife described, the applicant’s father’s mistakes have tailed off and he is now involved in a more settled business arrangement. (Many of his problems appear to be related to his business arrangements.) He is also drinking less, which apparently is a good thing for him. There must be some issue about recidivism, but as I observed in my discussion with Mr Bower, the opportunities that he is likely to be presented with are not so great if he is only going to be out here for a limited period of time and he is not engaging in any business activities.  So that is the primary consideration. 

8.The other consideration is the emotional impact on the applicant.  It would be nice for the applicant to have his father at his wedding, particularly as he is effectively the only member of the family who will be able to make the trip. That is of less weight than the primary considerations. 

9.When I balance the primary considerations, the seriousness of the nature of the conduct and the minimal risk the conduct could be repeated, I am not persuaded that they are enough to justify the refusal of the visa. Particularly when I include with that the impact upon the applicant, which I accept is legitimate and real, that militates in favour of allowing the applicant’s father to come here as a tourist. 

10.The Tribunal sets aside the decision under review and decides in substitution that Mr Hillerby is granted a tourist visa with the recommendation that it only be for a limited period of time. This would not be for the period of the full three months, rather in the order of 21 days so that he can attend his son’s wedding and spend time with his new family.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ......................[Sgd].....................................................
  Patrick MacDonald

Date of Hearing  17 August 2010 
Date of Decision  17 August 2010
Date of Written Reasons          3 September 2010
Applicant  Self-represented

Solicitor for the Respondent     Mr R Bower, Clayton Utz