Johnson and Minister for Immigration and Multicultural Affairs
[2001] AATA 854
•20 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 854
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q01/492
GENERAL ADMINISTRATIVE DIVISION )
Re JACK JOHNSON
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date20 September 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the matter be remitted to the respondent with the Tribunal's direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant, Michael Paul Mullineaux and that the visa sought by the visa applicant should not be refused on character grounds.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – refusal to grant visa on character grounds – visa applicant resident in Great Britain.
Migration Act 1958 ss 501
REASONS FOR DECISION
20 September 2001 Deputy President DP Breen, Presidential Member
This matter came on for hearing before me on 20 September 2001 in Brisbane. The applicant was represented by Ms J Benson, the partner of the applicant, Jack Johnson, and the respondent was represented by Ms B Smith, Solicitor of Messrs Blake Dawson Waldron.
At the hearing the "T" Documents were tendered as Exhibit 1 and oral evidence was received from the applicant and the visa applicant, Michael Paul Mullineaux, gave telephone evidence from the United Kingdom. At the conclusion of the hearing an oral decision was delivered by me.
By facsimile dated 24 September 2001, the respondent requested a statement in writing of the reasons of the Tribunal for its decision pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975. I now set out the oral reasons which were delivered at the conclusion of the hearing.
The decision under review in this matter is one of a delegate of the Minister to refuse to grant a visa to the review applicant's son, Michael Paul Mullineaux, a resident of Great Britain, to enter Australia for a period of approximately one month bringing with him his daughter, Laura, for the purpose of a vacation and of visiting his father, Mr Jack Johnson.
The decision under review was based upon a finding impelled, really, upon the decision-maker by the legislation that the visa applicant failed to pass the character test imposed by the legislation, the refusal of the visa being based upon the relevant section of the Act, namely Section 501. The decision reflects the fact that the visa applicant has, on three separate occasions, been before Courts of England exercising criminal law jurisdiction.
In 1979 the visa applicant was convicted of robbery in company. The evidence before me establishes that the offence involved drunken, loutish behaviour by a then 20 year old who was in company with friends at the time. Quite by accident, on the street they came upon a citizen, presumably unknown to them, who was wearing what they considered to be an attractive jacket. They demanded that he hand over the jacket. He did so. That led to the conviction of the visa applicant on the charge of robbery.
The offence of robbery led to a sentence being imposed by the Leicester Crown Court on 25 May 1979 of six months imprisonment, wholly suspended for two years subject, no doubt, to the visa applicant entering into the English equivalent of a Queensland good behaviour bond.
There are three further convictions involving offences all of which arose from a course of conduct set against a background of domestic disputation. These offences occurred on 13 August 1989. The accused, the present visa applicant, Michael Paul Mullineaux, pleaded guilty on 4 September to one count of assaulting one David Martin Cox, an Inspector of Police, thereby occasioning him bodily harm; one count of making a threat to kill one Shirley Ann Mullineaux, the former wife of the visa applicant; and one count of wilful damage to property belonging to the said Shirley Ann Mullineaux and also to Blaby District Council. It emerged on Mr Mullineaux's evidence that his former wife rented a house from that Council, hence the property damage count naming her and the Council as complainants.
In respect of these three offences he was placed on probation for one year. I have been told in evidence that before the expiration of the entire period of probation, he applied for a cancellation of the order and it was granted.
I can understand the concerns of the respondent arising from these convictions, including the fact that they all involved an element of violence. However, as I have already observed, the offence of robbery in 1979 was convicted at a time when Mr Mullineaux was only 20 years of age. It seems that he was under the influence of alcohol and it sounds more like an offence involving street bravado by one or more louts than something equivalent to armed robbery of a bank. Therefore, whilst robbery per se is a very serious offence, this particular instance of it, whilst hardly describable as trivial or insignificant, nonetheless is well down the order of scale of culpability.
I have already recorded the robbery conviction and there were the convictions on 4 September 1989 for the three offences of 13 August 1989 in respect of which probation orders were made. I repeat my observation in respect of these offences that they occurred in a domestic context and did not involve any threat to the public.
The primary consideration in a case of this nature is the protection of the interests of the Australian population. I do not agree that Mr Mullineaux's criminal history should be regarded as posing a threat to the interests of the Australian community if he is granted the temporary entry visa which he seeks.
I am therefore persuaded on all of the evidence that the decision under review is not the preferable decision and that it should be set aside. In substitution for it, the Tribunal determines that the visa sought by the visa applicant should not be refused on character grounds under Section 501. The Section, as I have said, impels the finding of lack of good character, but in my view, the discretion that is now mine to exercise should be exercised in favour of the visa applicant, Michael Paul Mullineaux.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Denise Burton
Secretary
Date/s of Hearing 20.9.01
Date of Decision 20.9.01
Solicitor for the Applicant Ms J Benson, partner of applicant
Solicitor for the Respondent Ms B Smith, Messrs Blake Dawson Waldron
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