Johnson and Minister for Immigration & Multicultural & Indigenous Affairs
[2003] AATA 304
•2 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 304
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/358
GENERAL ADMINISTRATIVE DIVISION ) Re JEAN JOHNSON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date2 April 2003
PlacePerth
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 David Perry Johnson for a Subclass 309 Spouse (Provisional) visa should not be refused pursuant to s 501(1) of the Migration Act 1958.
…........(sgd S D Hotop)..................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Spouse (Provisional) visa – visa applicant convicted of numerous (mostly minor) offences in England from 1978 to 1995 – visa applicant first arrived in Australia on Visitor visa in January 1996 – visa applicant and applicant (an Australian citizen) met in Perth in February 1996 and were married in Perth in October 1996 – visa applicant made false or misleading statements regarding his criminal record in 5 visa applications between September 1996 and January 2002 – whether visa applicant passes character test – whether visa applicant not of good character having regard to past and present criminal conduct – whether visa applicant not of good character having regard to past and present general conduct – whether discretion should be exercised to refuse to grant Spouse (Provisional) visa to visa applicant – relevant primary considerations – protection of Australian community – expectations of Australian community – other relevant considerations including hardship to applicant
Migration Act 1958 s 501(1), s 501(6)(c)(i), s 501(6)(c)(ii)
Direction – Visa Refusal and Cancellation under section 501 – No 21
Goldie v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
2 April 2003 Associate Professor S D Hotop, Deputy President Introduction
1. Jean Johnson (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”), dated 7 September 2001, to refuse to grant a visa, namely, a Subclass 309 Spouse (Provisional) visa, to her husband, David Perry Johnson (“the visa applicant”), pursuant to s 501(1) of the Migration Act 1958 (“the Act”).
2. At the hearing the applicant appeared in person without representation, and the respondent was represented by Mr M Kennedy, a solicitor employed by the Australian Government Solicitor. The Tribunal had before it the documents (“T documents”, T1-T22, pp 1-162), and supplementary documents (S23-S34, pp 1-29), lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and various documentary exhibits tendered in evidence by the applicant (A1-A6). Oral evidence was given by the applicant, Dale Heys and (by telephone from England) the visa applicant, Bernadette Johnson and Leslie Johnson.
The Factual Background
3. The relevant background facts, as found by the Tribunal on the basis of the T documents (including the supplementary documents) and exhibits and about which there is no dispute between the parties, are as follows.
4. The applicant was born on 28 April 1948 in London, England and was a British citizen by birth. She first arrived in Australia on 2 September 1977 and was granted a Certificate of Australian Citizenship on 23 December 1981. She continues, however, to hold British citizenship.
5. The visa applicant was born on 7 August 1964 in Manchester, England and is a British citizen.
6. The visa applicant first arrived in Australia on 29 January 1996, having been granted a Visitor visa which was valid for 6 months.
7. On 27 July 1996 the visa applicant returned to England in company with the applicant whom he had met in Perth in February 1996.
8. The applicant and the visa applicant returned to Australia in August 1996, the visa applicant having been granted another Visitor visa.
9. On 6 September 1996 the visa applicant completed an “Application to Remain Permanently in Australia” form which was subsequently lodged with the (former) Department of Immigration and Ethnic Affairs. In answer to the question, “Have you … ever been convicted of a crime or offence in any country … ?”, the visa applicant ticked “No”. (T2, p22) The visa applicant also signed a pro-forma Statutory Declaration at the end of that form in which he declared, inter alia, that the information supplied on that form was “complete, correct and up-to-date in every detail”. (T2, p34)
10. On 6 October 1996 the applicant and the visa applicant were married in Perth, Western Australia.
11. In November 1996 the visa applicant returned to England following the sudden death of his father who lived there.
12. The applicant travelled to England in February 1997 to be with the visa applicant and they both lived in England from then until August 2000.
13. In the meantime, on 22 March 1999 the applicant completed an “Application for Migration to Australia” form which was subsequently lodged with the (former) Department of Immigration and Multicultural Affairs (“the Department”) at the Australian High Commission, London on 5 June 2000. In answer to the question, “Have you … ever been convicted of a crime or offence in any country … ?”, the visa applicant ticked “Yes” and, in response to the stated requirement to “give ALL relevant details”, he wrote: “Shoplifting. Sentenced to a fine.” (T3, p48) The visa applicant also signed a pro-forma Declaration at the end of that form in which he declared, inter alia, that the information supplied on that form was “complete, true and up-to-date in every detail”. (T3, p51)
14. In August 2000 the applicant and the visa applicant returned to Australia, the visa applicant having been granted another Visitor visa.
15. By letter dated 28 September 2000 an officer in the Family Migration Team, Migration Branch, Australian High Commission, London, gave “Notice of Intention to Refuse Visa under Section 501 of the Migration Act” to the visa applicant in which various criminal convictions in the period from 1978 to 1998 were referred to and the opportunity was accorded to the visa applicant to provide written comments within 21 days. (T4) Enclosed with that letter was another letter from the Family Migration Team requesting the visa applicant to provide certain documentation in support of his “application to migrate to Australia”, including:
“A Police Clearance ‘Person Record: Prosecution/Criminal History’ letter for the following country – ”.
(T9) [The Tribunal notes that no country was specified.]
16. By letter dated 20 October 2000 the visa applicant and the applicant replied to the latter abovementioned letter, enclosing certain documentation as requested in that letter. As regards the abovementioned request to provide a Police Clearance, their letter stated:
“… this information was sent to you with the application and included ‘Person Record: Prosecution/Criminal History’.. This was requested from Police Headquarters, Chester Road, Stretford, Manchester & all relevant documents forwarded to yourselves (ORIGINALS)”.
(T11) [The Tribunal notes that the T documents contain a letter dated 3 July 1999 from the National Identification Service, New Scotland Yard, London to the visa applicant, referring to his request for his “Person Record: Prosecution/Conviction History” and enclosing a computer printout of his “Arrest/Remand History” and “Disposal History”, as at 3 July 1999, which covered the period from 14 September 1978 to 9 September 1998 (T5). The Tribunal also notes (as stated in paragraph 13 above) that the visa applicant’s application to migrate to Australia, although dated 22 March 1999, was not lodged with the Department until 5 June 2000.]
17. On 14 November 2000 the visa applicant lodged with the Department an “Application for further stay as a visitor” form whereby he requested permission to stay in Australia until 14 May 2001. He had signed a pro-forma Declaration at the end of that form in which he declared that, inter alia: “I have never been convicted of a crime or any offence in any country; …”. The visa applicant’s request was approved and he was granted a Subclass 686 Tourist (Long Stay) visa valid until 14 May 2001. (T12)
18. By letter dated 16 November 2000 an officer in the Family Migration Team, Australian High Commission, London requested the visa applicant to provide further documentation in support of his “application to migrate to Australia”, including:
“A Police ‘clearance’ letter from the following country – UK AND AUSTRALIA”.
The letter explained:
“THE UK DOCUMENT ON FILE HAS EXPIRED. THESE DOCUMENTS HAVE A VALIDITY OF 12 MONTHS FOR OUR PURPOSES.”
(T13)
19. By letter dated 6 December 2000 the visa applicant replied to the abovementioned letter of 16 November 2000 enclosing certain documentation and indicating that a “UK Police Clearance” and an “Australian Police Clearance” would be forwarded in due course. (T14)
20. By letter dated 18 December 2000 the visa applicant sent to the Australian High Commission, London a Certificate from the Australian Federal Police, dated 13 December 2000, which stated:
“This is to certify that there are no Disclosable Court Outcomes recorded against the name of:
David Perry Johnson born in UK on 07 August 1964
in the records of the Australian Federal Police or the police in any Australian State or Territory as at 13 December 2000.”
(T15)
21. On 7 May 2001 the visa applicant lodged with the Department an “Application for further stay as a visitor” form whereby he applied for a Tourist (Long Stay) visa valid until 25 August 2001. He had signed a pro-forma Declaration at the end of that form in which he declared that, inter alia: “I have never been convicted of a crime or any offence in any country; …”. The visa applicant was granted a further Tourist (Long Stay) visa valid until 22 August 2001. (T17)
22. By letter dated 12 June 2001 the visa applicant forwarded to the Australian High Commission, London a letter from the National Identification Service, New Scotland Yard, London enclosing a computer printout of the visa applicant’s “Arrest/Remand History” and “Disposal History”, as at 26 May 2001, which covered the period from 14 September 1978 to 9 September 1998. (T18)
23. On 22 August 2001 the visa applicant departed Australia and returned to England where he has been residing ever since.
24. On 7 September 2001 a delegate of the respondent decided to refuse to grant to the visa applicant a Subclass 309 Spouse (Provisional) visa, and the visa applicant was notified of that decision by letter of the same date. (T1, pp3-11)
25. On 2 October 2001 the applicant lodged with the Tribunal an application for review of the delegate’s decision of 7 September 2001. (T1, pp1-2)
Subsequent Developments
26. On 5 January 2002 the visa applicant made a further application for a Subclass 686 Tourist (Long Stay) visa. He signed a pro-forma Declaration at the end of the application form in which he declared, inter alia: “I have never been convicted of a crime or offence; …”. (S24)
27. By letter dated 5 February 2002 a Senior Migration Officer in the Australian High Commission, London informed the visa applicant that his application for a Subclass 686 visa was “liable to refusal” under s501 of the Act, accorded him the opportunity to comment, and required him to provide a “Person Record: Prosecution/Criminal History”. (S25)
28. The visa applicant obtained, from the National Identification Service, New Scotland Yard, London, a computer printout of his “Prosecution/Conviction History”, as at 12 April 2002, which covered the period from 14 September 1978 to 9 September 1998 (S31), and he forwarded that document to the Australian High Commission, London.
29. On 10 May 2002 a delegate of the respondent decided to refuse to grant to the visa applicant a Subclass 686 Tourist (Long Stay) visa, and the visa applicant was notified of that decision by letter of the same date. (S34)
The Visa Applicant’s Criminal History
30. The visa applicant’s history of criminal convictions in the United Kingdom, as set out in the computer records provided by the National Identification Service, New Scotland Yard, London (referred to in paragraphs 16, 22 and 28 above), is as follows:
Date of Conviction
Offence
Penalty
14-9-78
Obtaining property by deception ( 2 counts)
1. Attendance Centre 24 hrs
2. Conditional Discharge 12 months
12-6-80
Theft
Fine £50.00
5-4-82
Going equipped for theft
Attendance Centre 24 hrs
9-6-82
Theft
Probation Order 2 years
19-10-82
1. Theft (3 counts)
2. Going equipped for theft
Probation Order 2 years on each count (concurrent)
16-11-83
1. Theft (2 counts)
2. Attempt
Probation Order 2 years on each count (concurrent)
10-4-84
Theft
Fine £75.00
31-10-84
Theft
Conditional Discharge 2 years
30-4-86
1. Theft – shoplifting
2. Breach of Probation Order
3. Breach of Conditional Discharge
1. Imprisonment 3 months
2. Imprisonment 1 month (concurrent)
3. Imprisonment 1 month (concurrent)
24-7-89
Theft – shoplifting
Conditional Discharge 12 months
11-8-89
Theft – shoplifting
Fine £50.00
2-2-90
Theft – shoplifting
Fine £75.00
20-5-91
Criminal Damage
Compensation £150.00
28-10-91
Theft – shoplifting (2 counts)
Probation Order 6 months on each count
5-12-91
Theft – shoplifting
Conditional Discharge 12 months
4-3-92
1. Theft – shoplifting (2 counts)
2. Breach of Probation Order
Imprisonment 4 months, suspended for 12 months, on each count (concurrent)
7-1-94
Threats to kill (3 counts)
Probation Order 2 years on each count
28-11-95
Breach of the Peace
Bound over 12 months in sum of £100.00
The final item in the record of the visa applicant’s criminal history in the United Kingdom states that he was “cautioned” by police for “being drunk and disorderly” on 9 September 1998.
31. The visa applicant had no recorded criminal history in Australia as at 13 December 2000, as certified by the Australian Federal Police on that date (see paragraph 20 above).
The Visa Applicant’s Evidence
32. The visa applicant gave evidence by telephone from Manchester, England. In his evidence-in-chief he confirmed that:
·he had had no drinking problems for the last 5-6 years and that all his drinking problems were now behind him;
·he had had no problems with the police during the periods he spent in Australia and since he returned to the United Kingdom.
He added that the problems he had had in the past stemmed from alcohol abuse and the physical abuse he received from his father when he was a child, and he expressed remorse for his past criminal behaviour and the disgrace it had brought on his family. He said that his meeting the applicant had “changed [his] life” and that he had now “sorted [himself] out”.
33. In cross-examination, the visa applicant was first referred to his criminal history in the United Kingdom. He acknowledged that his criminal record spans 17 years from 1978 (when he was aged 14 years) to 1995 (when he was aged 31 years), and that it comprises mainly convictions for theft and related offences. As regards the more serious offences of “threats to kill”, of which he was convicted in 1994, the visa applicant said that he pleaded “not guilty” to those offences and explained that the relevant incident occurred at his mother’s house and that the police wrongly believed that he had been “causing trouble to [his] mother”.. He nevertheless acknowledged that he had been convicted of those offences. As regards the caution he received from the police in 1998, he explained that he was waiting at a bus stop when two people, who were dressed in plain clothes and did not identify themselves as police officers, asked him whether he knew anything about an incident that had occurred nearby. When he told them that he did not, they claimed that they could smell alcohol on his breath and that he was “possibly drunk and disorderly” and so they cautioned him. The visa applicant told the Tribunal that he had not been disorderly on that occasion and that he was merely “waiting for a bus to get home”.
34. The visa applicant was not questioned about the various visa application forms he had lodged with the Department since 1996 in which he had either (falsely) indicated and/or declared that he had never been convicted of an offence in any country (see paragraphs 9, 17, 21 and 26 above), or (misleadingly) indicated that he had only been convicted of “shoplifting” and had been “sentenced to a fine” (see paragraph 13 above). He explained that he honestly believed that the relevant questions and declarations in those forms were referring to criminal convictions in Australia. He denied that he had deliberately made false statements on those occasions for the purpose of improving his chances of being granted a visa, and he said that if he had correctly understood what was intended by the wording in the forms he would truthfully have included his convictions in England. When asked to explain why, in the “Application for Migration to Australia” form (which he completed on 22 March 1999 and lodged with the Department on 5 June 2000), he had mentioned the offence of “shoplifting” (of which he had been convicted in England on 9 occasions), he was unable to do so satisfactorily but added that he had not, by so doing, intended to mislead or deceive in order to gain a benefit.
35. It was put to the visa applicant that, in his criminal history in the United Kingdom, there was a gap in his offending behaviour from 1986 to 1989 after which he resumed his offending behaviour until 1995. He explained that there were periods when he sought help for his “psychological problems” resulting from his father’s abuse of him as a child and for his “addiction to alcohol”. He added that overcoming those problems was “a long process” and that he had now overcome them with the help of his wife (the applicant) and had become a law-abiding citizen. Asked whether his multiple convictions for theft and kindred offences demonstrated a disregard for the law, he responded:
“Well at the time these offences were committed I wasn’t myself. I had a lot of problems with alcohol that was – there was mainly like - I think they were mainly shoplifting offences. Yes, I think it was mainly shoplifting offences. These offences were – I regret – I am very remorseful for these offences that have been committed and I was so traumatised with the beatings I received at the hands of my father and that led to alcohol abuse.
Mr Johnson? ---And---
I am sorry, have you finished?---Yes, sir, I know. I am ashamed of the amount of offences that are involved and I deeply regret it but I have overcome these offences now. There will be no repeat of it ever again.”
(Transcript, p 27)
36. The visa applicant said that when he first met the applicant in Perth in February 1996 he still had a drinking problem, although not “as bad as it had been”, but that since then together they had overcome it. He said that after he met the applicant, and prior to their marriage, he told her about his drinking problem and his convictions for shoplifting in England and explained to her the reasons behind those problems.
37. The visa applicant said that, during the period from 1997 to 2000 when he and the applicant lived together in England, he worked in his brother’s sports shop and collected rents for his brother for which he was paid about ₤40.00 per month. He agreed that the applicant had a job throughout that period and financially supported the household.
38. Finally, it was suggested to the visa applicant that his “ties are essentially all in the United Kingdom”. He responded that his ties are in Australia, namely his wife and her son, daughter and grand-daughter, together with friends whom he had met while in Australia. He acknowledged, however, that his blood relatives were all in the United Kingdom, namely, his mother, brother and 2 sisters.
The Applicant’s Evidence
39. The applicant tendered in evidence a bundle of documents (Exhibit A1) which included a statement of herself outlining in chronological order significant events and circumstances in her life with the visa applicant from the time they met in February 1996, and their circumstances during the time since August 2001 when they have been apart because of the visa applicant’s return to the United Kingdom on the expiration of his last visa.
40. In her oral evidence-in-chief the applicant said that the visa applicant had, shortly after they met, told her about the abuse he received from his father as a child and his criminal convictions in England. She added that initially he did not tell her “everything” but that, after a few weeks when they both realised where their relationship was heading, they managed to “talk [it] through”.
41. The applicant said that when she met the visa applicant he was not a “drinker as such” but would occasionally have 2 or 3 beers. She said that she is not a drinker and that, before and after their marriage, they would have “an occasional social drink”. She added that, whereas in the past the visa applicant had been unable to stop drinking, now he is able to stop. She tendered in evidence a short letter, dated 17 June 2002, from the visa applicant’s general practitioner in Manchester stating that, although he previously had a “problem with excess alcohol consumption … related to his mother’s serious illness”, he had “managed to overcome this and is now no longer drinking alcohol at all”. (Exhibit A2)
42. The applicant told the Tribunal about the period from February 1997 to August 2000 when she and the visa applicant lived together in Manchester, England. She said that she was able to get a good job there but that she found the weather – in particular, the rain and the very cold winters – very difficult to cope with, especially after she injured her back and hip in a work accident. She added that those problems would be compounded now if she were ever to return to live there because she had since had a car accident (in May 2001) in which she sustained a broken pelvis. She tendered in evidence (pt of Exhibit A1) documents confirming her hospitalisation and treatment as a result of that accident, together with a medical certificate dated 17 June 2002 confirming that she continues to suffer “residual symptoms that are aggravated by cold weather and high humidity”.
43. The applicant also told the Tribunal that, although she was born in England, her parents have long both been deceased and she has no close blood relatives living there. She said that all members of her immediate family, comprising 2 children in their early 20s and 2 very young grandchildren, live in Perth. She said, furthermore, that she has a very good, secure and well-paid job in Perth (confimatory documentation from her employer, and a taxation group certificate and pay advice slips, were tendered in evidence – Exhibit A3 and pt of Exhibit A1), but that, now that she is in her mid 50s and given the adverse employment situation which to her knowledge exists in Manchester, she was not confident that she would be able to obtain employment if she were to return to live there.
44. In cross-examination the applicant acknowledged that:
·she was fully aware of the visa applicant’s previous alcoholism and criminal convictions in England when they married in August 1996;
·she and the visa applicant realised that his criminal record would be taken into account by the Department in considering his application to migrate to Australia;
·she had observed the visa applicant to be under the influence of alcohol on a couple of occasions since their marriage, but not to the extent that he had been in the past, and not at all over the last 4 years.
45. The applicant was questioned by the Tribunal regarding the visa applicant’s falsely declaring, in the various visa application forms he lodged with the Department, that he had no criminal convictions. She said that the visa applicant was not an educated person and had “great difficulty completing any sort of form” and probably signed the forms without reading the “small print”. She added that they had never hidden the fact that he has a police record and had “always provided the police records to whoever has asked for them”.
The Evidence of Bernadette Johnson
46. Bernadette Johnson, who gave evidence by telephone from Manchester, England, confirmed that she is the mother of the visa applicant, and that the visa applicant is presently living with her and looking after her. She also confirmed that she had written a statement dated 15 February 2002 in support of the visa applicant’s case. That statement, which was tendered in evidence (pt of Exhibit A1),reads in part:
“…
David as a child had many difficulties to cope with. Unfortunately his father, who passed away some 4 years ago, caused myself and the other 3 children many problems due to his drinking. Our family suffered in many ways including having enough food on the table, clothing, schooling etc, and I found it very hard to cope with the situation. I am now 61 years of age and the trauma of coping with 4 children and a ‘wayward husband’ has caused me much suffering both mentally and physically. Unfortunately in David’s case his childhood was a never-ending fight to keep out of his father’s way. To give you an example, David helped people of the community by offering to do their shopping (aged persons) and was paid minimal sum for his efforts. Unfortunately his father became aware and demanded any money that he received to be given to him.
Through his childhood he struggled to cope with the family environment and this led to his drinking problems. I am glad to say that this has now ceased and he is determined to turn his life around and make something of what is left. Since he met his wife he has become a very responsible person and does not drink and cause any problems whatsoever.
…”.
47. Mrs Johnson also said that, if the visa applicant were to leave England and return to Australia to live with the applicant, it would cause no problems for her because she had 2 daughters and another son living in Manchester who would be able to care for her.
The Evidence of Leslie Johnson
48. Leslie Johnson who gave evidence by telephone from Manchester, England, confirmed that he is the brother of the visa applicant. He also confirmed that, should the visa applicant be granted permission to stay in Australia, he and his sisters would look after their mother in Manchester.
49. Mr Johnson said that, although he too was abused by his father when a child, the visa applicant appeared to be more deeply affected, psychologically and emotionally, than his siblings. He confirmed, however, that the visa applicant is now completely alcohol-free. He said that he based that comment on the fact that he had not seen the visa applicant take any alcohol since he and the applicant had been together and since he had returned to the United Kingdom.
50. In cross-examination Mr Johnson acknowledged that he himself had “about 7” criminal convictions but said that he had never had a problem with alcohol.
The Evidence of Dale Heys
51. Dale Heys told the Tribunal that he is a pensioner and that he first met the applicant and the visa applicant at a bingo night about 5 or 6 years ago. He said that he had never seen the visa applicant drink and added that the visa applicant was a happy and friendly person who was well-liked by the people at the bingo.
The Report of Aileen Burnett
52. The applicant also tendered in evidence a Psychological Report dated 1 December 2002, regarding the visa applicant, prepared, at her request, by Aileen Burnett, Associate Psychologist, Chartered Forensic Psychology Services, Manchester, England (Exhibit A6). Ms Burnett’s qualifications are stated at the end of the report as: BSc Psychology (University of Edinburgh), MSc Applied Forensic Psychology (University of Leicester).
53. The contents of the abovementioned report, which is stated to be based on an assessment of the visa applicant on 29 November 2002, are as follows:
“1. PURPOSE OF REPORT/METHOD OF ASSESSMENT
1.1.The aim of this report is to provide information relating to Mr Johnson’s risk of recidivism and to comment upon factors relating to his offending behaviour.
1.2.I have interviewed Mr Johnson, for approximately two hours, at his home address in Manchester, in the presence of his mother.
1.3.I have had access to Mr Johnson’s medical notes during my visit to his home.
1.4.I have administered a standardised psychometric assessment measure, namely the Millon Clinical Multiaxial Inventory (MCMI).
2. PRESENTATION AT ASSESSMENT
2.1.Mr Johnson presented as well-kempt, appropriately and smartly attired and of slim to average build. Mr Johnson was extremely willing to cooperate with the interview and offered spontaneous information.
2.2.Although not formally assessed, I could detect no signs whatsoever of possible mental impairment (learning disability). I would estimate that Mr Johnson is currently functioning in the low average range of intellectual ability. Mr Johnson observed all the formal conventions of interaction, such as greeting and opening and closing of conversation. Mr Johnson used appropriate humour and was able to reflect upon his self-reported history and behaviour. He appeared to fully comprehend the nature and purpose of the assessment. I could detect no degree of memory impairment.
2.3.I could detect no evidence of any overt psychotic symptoms in Mr Johnson and he was oriented to person, place and time. Therefore, I am confident that I fully understood all the information that Mr Johnson wished to disclose to me.
2.4.Mr Johnson demonstrated no obvious signs or symptoms of severe mood disturbance. However, he did state that he had been feeling anxious lately, due to the stress of waiting for his visa to be approved. A certain level of anxiety would not be unusual given the nature of our contact and its possible outcomes, however, Mr Johnson appeared to be experiencing somewhat more than would be expected. During the period during which the assessment was being arranged by Chartered Forensic Psychology Services, Mr Johnson made numerous telephone calls to the office and left several answer machine messages requesting reassurance or complaining regarding the unavoidable timetable for the completion of a report.
3. BACKGROUND HISTORY
3.1.Family: Mr Johnson was born and raised in Manchester. He has an older brother and sister and a younger brother (sic). He reports that he doesn’t see his siblings a lot, and that their relationship is strained. Mr Johnson reported that his father died in 1996, having left the family home in 1980. Mr Johnson is currently living in his mother’s home while he waits to hear the outcome of his appeal.
3.2.Mr Johnson reported that he had a difficult relationship with his father. He reports that his father was a heavy drinker and spent all the housekeeping money on alcohol, never giving any to his mother. Mr Johnson reported that at times his father would become violent, and that on one occasion, his nose was nearly broken during a beating. Mr Johnson asserted that his father treated him the worst of all his children, and was more violent to him than his siblings. Mr Johnson’s mother agreed with this point.
3.3.Mr Johnson reported that his father left the family home when he was around 17 years of age and that he considered this to be a ‘blessing in disguise’.. However, Mr Johnson kept in contact with his father for some years and often saw him ‘around Manchester’ (please also see section entitled ‘Employment’).
3.4.Mr Johnson reported that the last time he saw his father was August 22nd 1996, the night before he was due to return to Australia for the second time. He asserts that he had not seen his father for a number of years at this point. Mr Johnson reported that his father was a recluse and dying of throat cancer. Mr Johnson felt that his father had ‘mellowed’.
3.5.Mr Johnson reported that his father died in November 1996, whilst he was living in Australia. He reported that he was unsure initially as to whether he should return for his father’s funeral, but decided that he may regret it if he didn’t. Mr Johnson stated that ‘it makes you a better person if you can forgive’, but noted that his wife found it harder to forgive Mr Johnson Senior’s reported treatment of her husband.
3.6.Education: Mr Johnson reports attending Langley Primary School in Burnside Crescent. He then moved to Langley High School, and then Queen Elizabeth Grammar School.
3.7.Mr Johnson reports that due to difficulties at home caused by his father’s drinking, he found it very difficult to concentrate on school work, and was always worrying about what was going to happen at home in the evening. He left school at the age of 15 ‘and three-quarters’ with no qualifications.
3.8.Mr Johnson reported being unhappy at school. He recalled that he was always picked last at everything (i.e. for sport teams), and he felt that the teachers picked on him ‘for no reason’.. Mr Johnson reported being the victim of bullying whilst at school. He reported that the dinner ladies would often give him extra food at lunchtime. Mr Johnson attributed this to them realising that he was ‘malnourished’.
3.9.Mr Johnson reported that he had one friend at primary school but no friends at his secondary schools. He reported that it would have been difficult to bring friends home due to his father’s erratic behaviour.
3.10.Employment: Mr Johnson reported that when he left school he got ‘caught up with [his] father’, who was a singer and would take him to talent competitions and clubs. Mr Johnson asserts that he did not feel assertive enough to say no to his father, and spent the first 3 years after leaving school claiming benefits and spending his time drinking with his father at these venues.
3.11.Mr Johnson reported that when he was approximately 19 years of age, his brother offered him 2-3 days a week working on his window cleaning round. Mr Johnson reported that he felt that this opportunity ‘got [him] out of a rut’.. He reported enjoying the work a great deal, as most of his customers were elderly people, who would invite him in ‘for a cup of tea and a biscuit’ afterwards. He asserts that for the most part, they were lonely, and he found ‘great pleasure’ in spending time with them. Mr Johnson worked on the window cleaning round for approximately 4 years, when his brother moved away and dissolved the round.
3.12.Following the loss of his window cleaning job, Mr Johnson became unemployed. He has not worked since this time and has lived off state benefits. Mr Johnson attributes his lack of employment history to his having been dependant upon alcohol (please see section entitled ‘Substance Misuse’) and his criminal record preventing him from gaining employment.
3.13.Accommodation: Mr Johnson reports that he lived in the family home until the age of 28. He then experienced several house moves. Mr Johnson initially moved into a local council flat, where he lived for approximately eleven months. Mr Johnson states that he quite enjoyed living on his own, and that it was ‘acceptable to [him]’. However, he also reports that he had to leave this flat as it was ‘not in a nice area’, and that this was ‘like a trauma’ to him so he had to ‘move on from that environment’.
3.14.Mr Johnson reported that he then moved to a flat in Stockport. He stated that this was a private house in a quiet street, with ‘more decent people’. Mr Johnson reported that he felt ‘at ease and relaxed’ living in this area. He states that after four months he left this flat as he couldn’t afford the rent whilst living on benefits.
3.15.Mr Johnson reported that he then moved to Cheetham Hill, ‘the nice part, not the council bit’. He reported that it was a nice environment and that he ‘felt safe there’.. Again, Mr Johnson reported that he had to leave this flat as he could not afford it.
3.16.Mr Johnson reported that after eight and a half months he moved to Chaderton, near Oldham. Mr Johnson reported that he was living in his brother’s privately owned house. His brother was going to visit Australia and rented his house to David. Mr Johnson stated that this was an ‘excellent’ area to live in, with ‘decent people who were polite and nice, in between middle and working class’. Mr Johnson reported that he lived here for 10-11 months.
3.17.Mr Johnson reported that his brother invited him to visit him in Australia in 1995. Mr Johnson reported that his brother felt that he would enjoy it and offered to pay for his air ticket. Mr Johnson went to Australia for the first time in January 1996, and stayed for six months. He reported that he initially stayed in a hotel and then rented accommodation for six weeks. Mr Johnson reported that he then moved into a house that his brother had bought and was empty while his brother was touring Australia. Mr Johnson reported that he immediately ‘felt at home’ in Australia and that he ‘had a sense of where [he] was’.
3.18.Mr Johnson reported that he met his wife during this first trip to Australia. He stated that his brother had arranged to meet two women in a local bar. Mr Johnson met Jean at the bar and they started a relationship. He reports that Jean will be 55 on her next birthday, that she has dual citizenship with the UK and that she is divorced with two children, one grandchild and another due in January.
3.19.Mr Johnson reported that both he and Jean returned to the UK on July 27th 1996. Mr Johnson stated that he had to return to the UK for visa reasons, and Jean came with him for a holiday, and to visit her parents’ grave, which she had not seen in many years. Mr Johnson reported that he and Jean returned to Australia on August 23rd 1996. He stated that when they returned they lived together as ‘Jean decided it was the best thing’.. Mr Johnson reported that Jean was working and that he would do household chores during the day, ‘keeping busy and healthy’. Mr Johnson reported that Jean and he were married in October 1996.
3.20.In November 1996 Mr Johnson reports that he returned to England for his father’s funeral. He stated that he asked Jean to think about living in England, and two months later she moved to Manchester where they both lived for three and a half years. Mr Johnson reported that Jean got a job immediately and is very hard working.
3.21.Mr Johnson reports that he and his wife initially lived in a privately rented house near his mother’s home. He stated that it was ‘not a good place to live in’ as children played football in the streets. Mr Johnson states that he found it an ‘unsettling experience’ living there. Mr Johnson reported that they moved out of this house after a disagreement with the landlady. He reported that the landlady had agreed to pay half the costs of getting the garden tidied, but then reneged on this. Mr Johnson reported that he was deeply unhappy at this, as he perceived the landlady to be acting inappropriately, as she had many properties, and was ‘obviously wealthy’. Mr Johnson reported that he and his wife then moved to Heywood, which he stated was ‘much better, had more respectable people who [he] liked mixing with’. He reported that he and Jean lived there for a year.
3.22.Mr Johnson reported that after a year he and Jean returned to live in Australia. He stated that Jean found it difficult living in England, that the cold weather was ‘hard on her joints’ and that she missed her family. Mr Johnson reported that Jean worked while he kept himself busy at home.
3.23.Mr Johnson reported that he had to return to England in summer 2001 for visa reasons. He stated that his citizenship had not been processed and so he had to live in the UK until it was.
3.24.Relationships: Mr Johnson describes himself as heterosexual and states that he has had only one relationship, that with his wife, Jean. He attributes his marked lacked of relationships both as a teenager and an adult to being brought up in a ‘harsh environment’ which made it very difficult to have friends of either sex.
3.25.Substance Misuse: Mr Johnson started drinking when spending time with his father in pubs and clubs after leaving school. At this time, most of his benefit money was going towards alcohol. Mr Johnson reported that while working on his brother’s window cleaning round he was still in contact with his father, and drinking. When this period of work ended, his alcohol consumption steadily increased. Mr Johnson reported that he was drinking at least 15 pints of bitter a day and became physically dependent on alcohol. Mr Johnson asserts that the alcohol was making him unwell, and he was not eating or sleeping, and that the alcohol ‘had a grip on [him]’. Mr Johnson reported that his drinking was a result of feeling that he had ‘nothing going for him’ and that he was ‘releasing the pressure of such a bad childhood’.. Mr Johnson stated that he normally drank on his own.
3.26.Shortly after moving into his own flat in 1992, Mr Johnson reported that he went to a local Christian church and ‘cried [his] eyes out’.. He asserts that he felt that he had nothing good in his life and that he was never going to attain anything. Mr Johnson reported that there was no furniture in his flat, and he felt that he was being punished. Mr Johnson reported that at this point he decided to stop drinking, and stopped ‘just like that’. However, later in the interview, Mr Johnson contradicted himself and stated that by ‘about 1994/95 the drinking had stopped’. I note that Mr Johnson has alcohol related convictions up until November 1995 and was cautioned for being Drunk and Disorderly in 1998 (please see section entitled ‘Offending Behaviour’).
3.27.Mr Johnson reports having experienced very bad withdrawal symptoms upon stopping his alcohol use. He recalls that it was very painful and he experienced visual hallucinations at night. Mr Johnson reports that he has totally abstained from alcohol use for a number of years and that he has never used illegal substances.
3.28.Medical/Psychiatric History: Mr Johnson reports that he has had no serious illnesses or accidents. He reported that he sought help at Park House for his alcoholism, which he described as a ‘psychiatric place for people with drink problems’, situated at North Manchester General Hospital. I note that Mr Johnson’s medical notes evidence an extended period of time during which he was attempting to give up drinking. He was prescribed Diazepam (a tranquilliser) in order to help him combat his alcoholism for some time.
3.29.Previous Offending: Mr Johnson has a number of previous convictions, starting at age 15 (sic) and the last being in September 1998 (sic), at the age of 34.
3.30.In September 1979 (sic) Mr Johnson was convicted of two counts of Obtaining Property by Deception and was sentenced to attend an Attendance Centre for a total of 24 hours, and was given a Conditional Discharge for 1 year. Mr Johnson reported that these offences were related to the use of fake identity cards in local pubs and that he carried out these offences with one of his brothers (sic). He stated that the Attendance Centre was in Oldham, and that he didn’t really ‘take to it’.. Mr Johnson went to the Centre for two hours at a time on Saturday mornings. He reported that it was mainly older boys there, who were aggressive and that he kept ‘himself to himself’.
3.31.In June 1980 Mr Johnson was convicted of one count of Theft and was sentenced to attend an Attendance Centre for 24 hours. He stated that this offence was related to using a wire on slot machines to get extra money to play on them. Mr Johnson reported that this offence, and all later ones, were committed on his own.
3.32.In April 1982, Mr Johnson was convicted of Going Equipped for Theft and was given a Probation Order for 2 years. Again, Mr Johnson reported that he had been attempting to use a wire to get money from slot machines. He reported that this was also true for the next five convictions:
3.32.1.In June 1982 Mr Johnson was convicted of one count of Theft and was given a Probation Order for 2 years and ordered to pay costs of £10.
3.32.2.In October 1982 Mr Johnson was convicted of three counts of Theft and one of Going Equipped for Theft. He was given a two year Probation Order for each of these offences.
3.32.3.In November 1983 Mr Johnson was convicted of three counts of Theft and was given three Probation Orders for 2 years.
3.32.4.In April 1984 Mr Johnson was convicted of one count of Theft and was fined £75 and ordered to pay costs of £25.
3.32.5.In October 1984 Mr Johnson was convicted of one count of Theft and was given a two year Conditional Discharge and ordered to pay compensation of £3.20 and costs of £35.
3.33.In April 1986 Mr Johnson was convicted of Theft – Shoplifting and was given a three month custodial sentence. In addition, he was convicted of Breach of Probation Order for which he was sentenced to 1 month imprisonment to be served concurrently (from the conviction of November 1983), and was also convicted of Breach of Conditional Discharge for which he was sentenced to one month imprisonment (resulting from the conviction of October 1984). Mr Johnson reported that he pleaded not guilty to the Shoplifting charge, and stated that this was because he had not committed it. Mr Johnson reported that he had spent 8 weeks in Kirkham Prison in Lancashire. He described it as a ‘terrible’ experience and that he ‘kept [himself] to [himself]’.. Mr Johnson reported that he was a victim of bullying whilst there. He stated that he had spent a lot of his time in the education department, and that the female staff in this department had arranged for him to do full-time education in a bid to protect him from the other inmates.
3.34.In July 1989, Mr Johnson was convicted of Theft – Shoplifting and was given a 12 month Conditional Discharge. Mr Johnson reported that this was related to his alcoholism; he stole items in order to sell them and receive money to buy more alcohol.
3.35.In August 1989, Mr Johnson was convicted of Theft – Shoplifting and was fined £50. In February 1991 (sic), Mr Johnson was convicted of Theft – Shoplifting and was fined £75. Again, Mr Johnson reported that these offences were committed in order for him to gain more funds to buy alcohol.
3.36.In May 1991, Mr Johnson was convicted of Criminal Damage and was ordered to pay compensation of £150. Mr Johnson reported that he had not committed this offence. He stated that a window had been broken and that he had ‘been in the wrong place at the wrong time’. Mr Johnson reported that he had pleaded not guilty, even though the police told him that he had broken the window.
3.37.In October 1991 Mr Johnson was convicted of two counts of Theft – Shoplifting, was given 2 Probation Orders for 6 months and ordered to pay costs of £30. In December 1991 Mr Johnson was convicted of Theft – Shoplifting and was given a 12 month Conditional Discharge. Mr Johnson reported that these offences were committed in order for him to gain funds to buy alcohol.
3.38.In March 1992, Mr Johnson was convicted of two counts of Theft – Shoplifting for which he was sentenced to four months imprisonment wholly suspended for 12 months. In addition he was convicted of a Breach of the Peace and was sentenced to four months in prison to be served concurrently, wholly suspended for 12 months. Mr Johnson reported that the Shoplifting offence was related to alcohol, and that the Breach of Peace was committed when he was under the influence of alcohol and therefore he is unable to remember the details clearly.
3.39.In January 1994, Mr Johnson was convicted of three counts of Threats to Kill and was given a two year Probation Order for each offence. Mr Johnson reported that the circumstances of this offence were that he had come to his mother’s house for a bath as he had no hot water in his flat. He stated that he had been drinking, and while he was in the bathroom, his mother went to visit his sister. Mr Johnson reported that the police then arrived, but seemed unclear as to why. He stated that the police thought that he had said that he had a gun. Mr Johnson asserted that when the case came to trial he had pleaded not guilty because he never had a gun, and therefore wouldn’t have threatened to use one. He also stated that at the time of the trial, the police officers stated that they ‘may have got the wrong end of the stick’.
3.40.Mr Johnson’s mother gave a different account of the offences described in the previous paragraph. She reported that her son had come to her house and had been drinking. She stated that he was in the bathroom and was shouting and she felt that he ‘didn’t know what he was saying’.. Mrs Johnson reported that she was trying to get him to leave but was unable to, and so she telephoned the police. She stated that Mr Johnson was ‘shouting and screaming all sorts of things’.
3.41.In November 1995, Mr Johnson was convicted of a Breach of the Peace and was Bound Over for 12 months and ordered to pay £100. Mr Johnson reported that this offence occurred when he was standing at a bus stop and someone tried to break into a travel agent. Mr Johnson reported that he was ‘caught up in it’ and was convicted because he was drunk, even though he was not involved in the break in.
3.42.In September 1998, Mr Johnson was cautioned for being Drunk and Disorderly. Mr Johnson stated this occurred when he was questioned about an offence which he hadn’t committed. He reported that he had done nothing wrong and refused to cooperate, feeling that he was being discriminated against because of his previous convictions.
4. CURRENT ATTITUDES/BELIEFS REGARDING OFFENDING BEHAVIOUR
4.1.Mr Johnson demonstrates a two-year gap in his offending history from 1980. He is unable to account for this gap, although he suggests that his father had left the family home by this point and so life was ‘a bit easier’.
4.2.With regard to the offences involving slot machines, Mr Johnson stated that he was ‘not too heavily involved’ with playing these machines. He reported that at the time he did not see the seriousness of the offence as the money he was taking from the machine was going back into it. However, he reported that he now recognises that it was wrong as he was ‘depriving other people of their money’.
4.3.There was another two-year gap in Mr Johnson’s offending between 1984 and 1986. Mr Johnson accounted for this by saying that he was on a Probation Order at the time, and was beginning to realise the seriousness of his offences.
4.4.After Mr Johnson’s prison sentence in 1986 he was not convicted of another offence until 1989. He believes this gap is due to the deterrent effect of his imprisonment, and that he was ‘growing up’.
4.5.Mr Johnson states that he deeply regrets his past criminal behaviour. He stated that he knows that what he has done in the past is wrong, but that he feels it is very much in the past. Mr Johnson reported that he loves his wife very much, and is extremely anxious to return to her in Australia. He stated that he would not jeopardize this by reoffending.
4.6.Mr Johnson tends to see himself as a victim and avoids taking full responsibility for his offending behaviour. He sees his past alcohol use as a causal factor in his offending, rather than just a mediating variable. Mr Johnson reports that he feels that he had had a very difficult life and had ‘suffered so much’ but now he feels he is ready to settle down with his wife and her family in Australia. He reports that he had asked ‘for the Lord’s forgiveness, and now just needs people to put some faith in [him]’.
4.7.Mr Johnson tends to minimise some of his offences, particularly the threats to kill. During interview, Mr Johnson appeared somewhat irritated when his mother gave account of the behaviour that led to these charges.
4.8.Future Plans: Mr Johnson reports that he would very much like to gain employment in the future in Australia. He stated that his wife has contacts within the retail industry and he would consider any form of employment that would help him to support his family, as he is in ‘no position to be picky’.
5. MILLON CLINICAL MULTIAXIAL INVENTORY (MCMI)
5.1.The MCMI is a self-report measure of personality patterns, areas of psychosocial concern and clinical disorders that have been standardised on adults. …”
[The Report then sets out the results of the application of the MCMI to the visa applicant and concludes:]
“6. OPINION
6.1.This report has been prepared on the basis of the information outlined by section 1; I reserve the right to amend this report in the light of any additional information of which I have not yet been made aware.
6.2.In summary, Mr Johnson presents as an individual with significant anxious/dependant traits and social difficulties. Mr Johnson appears to view himself as a passive victim and has poor coping strategies/social skills; this appears to have pre-disposed him towards misuse of alcohol in the past.
6.3.Mr Johnson’s offending history appears to demonstrate three distinct phases:
1Mr Johnson committed a number of offences as a juvenile / young adult, the majority of which are related to his use of slot-machines.
2The bulk of Mr Johnson’s offending as an adult was in order to obtain finances to maintain his addiction to alcohol.
3Mr Johnson has a number of later offences that are related to his nuisance behaviours whilst intoxicated.
6.4.In my opinion, the primary factors related to Mr Johnson’s past offending behaviour are as follows:
· Alcohol addiction.
· Financial difficulties, compounded by poor educational achievement and unemployment/social skill deficits.
· Lack of responsibility and moral reasoning regarding his criminal behaviour.
· A generally aimless and unrewarding lifestyle.
6.5.It is my opinion that Mr Johnson is currently a low risk of reoffending. He is currently protected by his abstinence from alcohol and his current stable relationship. If Mr Johnson were to experience relationship difficulties and/or resume his alcohol use, his risk of minor acquisitive offending or nuisance behaviours would be increased.
6.6.Mr Johnson is currently a low risk of violent offending; I note that Mr Johnson has no history of physically violent behaviour although he has made threats of violence whilst intoxicated.”
The Legislation
54. Section 501 of the Act relevantly provides:
“(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).
…
(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)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; 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)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)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 in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
…”.
55. Section 496(1) of the Act authorises the respondent to delegate to a person any of the respondent’s powers under the Act. Section 499(1) of the Act authorises the respondent to give written directions to a person or body about the performance of their functions, or the exercise of their powers, under the Act, and subs (2A) of s 499 obliges such person or body to comply with such a direction.
56. Section 500(1) of the Act provides that application may be made to this Tribunal for review of, inter alia, a decision of a delegate of the respondent under s 501.. In conducting such a review, the Tribunal is obliged, by s 499(2A) of the Act, to comply with a direction made by the respondent under s 499(1).
57. On 23 August 2001 the respondent, pursuant to s 499(1) of the Act, gave a written direction to any person or body having functions or powers under s501 of the Act. This direction may be cited as “Direction – Visa Refusal and Cancellation under section 501 – No 21” (“the Direction”). The Direction comprises two parts: Part 1 deals with the application of the “character test” set out in s 501(6) of the Act (see paragraph 54 above), and Part 2 deals with the exercise of the discretionary power to (relevantly) refuse to grant a visa, pursuant to s 501(1) of the Act, in the event that the applicant for the visa does not pass the “character test”, and in particular sets out the “primary”, and other, considerations having regard to which that discretionary power must be exercised.
The Application of the Act and the Direction to the Circumstances of the Present Case
The “character test”
58. Failure by a person to satisfy the decision maker that they pass the “character test” (within the meaning of s 501(6) of the Act) is a condition precedent to the existence of the discretionary power, conferred by s 501(1) of the Act, to refuse to grant a visa to that person. Section 501(6) of the Act sets out various alternative circumstances in which a person, for the purposes of s 501, does not pass the “character test”.. In the present case it is common ground that the only such circumstances which are relevant are those set out in subparagraphs (c)(i) and (c)(ii) of s 501(6) – namely, that “having regard to either or both of … :
(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”.
59. Part 1 of the Direction states, in relation to the abovementioned circumstances set out in s 501(6)(c), as follows:
“Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is “not of good character” on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
·Subparagraph 501(6)(c)(i) – past and present criminal conduct
1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen’s record since the offence/s were committed, including:
· any evidence of recidivism or continuing association with criminals;
· a pattern of similar offences; and/or
· pattern of continued or blatant disregard/contempt for the law; and
(d) any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.
· Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
· engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
· continual evasion or non-payment of debt;
· continual disregard as to payments of family maintenance;
· involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or
· involvement in war crimes or crimes against humanity.
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
· whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
· the seriousness of the offence with which the applicant has been charged; or
(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
The Submissions
60. Mr Kennedy (for the respondent) submitted that the visa applicant does not pass the “character test” having regard to:
·his past criminal conduct as “demonstrated by his lengthy criminal record, recording frequent offending over a prolonged period” ; and
·his past general “and prima facia criminal” conduct in dealing dishonestly with Departmental officials by making false or misleading statements in various forms of application for visas, including an application for a tourist visa lodged after the lodgment of the present application for review.
61. The applicant submitted that the false or misleading statements made by the visa applicant in the abovementioned visa applications had not been made dishonestly but, rather, were the result of honest mistakes or misunderstandings owing to his lack of education. As regards the visa applicant’s criminal record, the applicant submitted that the offences in question occurred a long time ago and were caused by his alcoholism, none of them involved actual violence, and the visa applicant had since become alcohol-free and a law-abiding citizen such that it can be said that he is now of good character.
Consideration and Finding
62. As regards the meaning of the phrase “good character” in s 501(6)(c) of the Act, Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 said that those words “should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community”. That interpretation was approved by the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197, and in Goldie v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 321 at 323. In Goldie the Full Court went on to say (at 324):
“[8] Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
In Baker the Full Court also considered the meaning of the phrase “general conduct”, in a former provision of the Act corresponding to the present s 501(6)(c), as follows (at 195):
“That leaves for consideration just what is meant by ‘general conduct’ when, in the same context, this expression is used to distinguish conduct that is not ‘criminal conduct’. In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of ‘general conduct’, is conduct in general. The root meaning conveyed by the adjective ‘general’, as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to ‘criminal conduct’. We do not think there is any warrant for extracting, from the broad word ‘general’, a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person’s criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly…”.
63. In the present case the Tribunal, having regard to the considerations set out in para 1.8 of the Direction, notes that the visa applicant’s past criminal conduct comprises 24 offences against property (most of which were of a minor nature), 1 public disorder offence, and 3 offences against the person (which did not involve actual violence and for which a custodial sentence was not imposed), which were committed on a relatively frequent and regular basis during the period from 1978 (when he was aged 14 years) to 1995. The most recent recorded incident in the visa applicant’s criminal history was a mere “caution” by police in 1998 for being drunk and disorderly. The above offences and caution all occurred in England; the visa applicant has no criminal history in respect of the periods in which he lived in Australia from January to November 1996, and from August 2000 to August 2001. As regards the visa applicant’s criminal history in England, it was submitted by the applicant that there were mitigating circumstances, including the physical abuse the visa applicant received as a child from his father, his father’s influence on him generally, and his resulting excessive consumption of, and dependence on, alcohol.
64. In the Tribunal’s opinion the visa applicant’s abovementioned criminal history, notwithstanding that it does not generally involve serious criminality, and notwithstanding the abovementioned mitigating circumstances which may have contributed to it, demonstrates that he lacked the “enduring moral qualities” of a person of good character, at least during the period of his offending. The Tribunal notes that there is no record of the visa applicant’s having offended since 1995 (although he was cautioned in 1998), but is of opinion that it would be premature for it now formally to find that he is a person of good character. The Tribunal also notes that Ms Burnett, in her Psychological Report of 1 December 2002 (set out in paragraph 53 above), has opined that there is a “low risk” of the visa applicant’s reoffending. It remains to be seen whether Ms Burnett’s professional opinion proves to be accurate and whether the visa applicant is able to remain crime-free in the future such that the time will come when he may properly and safely be described as a person of good character.
65. The respondent also relied on the visa applicant’s past “general conduct” as further demonstrating his ongoing lack of good character – in particular, his making false or misleading declarations or statements regarding his criminal record in 5 separate applications to the Department for a visa, namely in September 1996, June 2000, November 2000, May 2001 and January 2002. Such conduct is, of course, a serious matter and, according to para 1.9 of the Direction, will, “in the absence of countervailing factors, constitute a failure to pass the Character Test”.
66. The visa applicant acknowledged in his evidence that he had made the abovementioned false or misleading declarations or statements but said that he had done so, not intentionally for the purpose of deceiving the Department, but rather by reason of his honest (but mistaken) belief that the information he was required to provide in the relevant visa application forms related to any criminal convictions in Australia, and he had no such convictions. The applicant submitted that that misunderstanding by the visa applicant was due to his lack of education.
67. The Tribunal notes that the visa applicant had obtained from the National Identification Service, New Scotland Yard, London a record, as at 3 July 1999, of his “Arrest/Remand History” and “Disposal History” (listing his criminal convictions and caution in England from 1978 to 1998), and that that record had been lodged by him with the Australian High Commission, London on 5 June 2000 together with his “Application for Migration to Australia” form (see paragraph 16 above). The Tribunal also notes that the visa applicant had also sent to the Australian High Commission, London an Australian police clearance certificate on 18 December 2000, and an updated record of his criminal history in England (containing exactly the same information as was contained in the earlier record) on 12 June 2001 (see paragraphs 18, 20 and 22 above). Having regard to those circumstances the Tribunal is inclined to the view that the visa applicant’s explanation for making the relevant false declarations or statements in the visa application forms – namely, that he honestly believed that the information he was requested to provide in the visa application forms related to criminal convictions in Australia – and his denial that he had deliberately made the false statements in those application forms in order to deceive Departmental officials, are, at least in relation to those forms lodged in November 2000, May 2001 and January 2002, plausible on the basis that he honestly and reasonably believed, when he lodged those forms, that the relevant Departmental officials were already aware of his criminal history in England. As regards the “Application to remain permanently in Australia” form lodged by the visa applicant in September 1996, the false statement and declaration contained in that form cannot be explained on that basis, but the Tribunal is, nevertheless, inclined to the view that that false statement and declaration were not made deliberately in order to deceive the Department but were instead made inadvertently under the misunderstanding that the question in the form related only to convictions in Australia. The misleading statement in the “Application for Migration to Australia” form lodged on 5 June 2000 – namely, a reference only to his having been convicted of “shoplifting” and “sentenced to a fine” therefor, thereby implying that that was his only criminal conviction – and the accompanying false declaration in that form are, however, more difficult to explain. Indeed the visa applicant himself was unable, in his evidence, to proffer an explanation. Notwithstanding the failure by the visa applicant to provide such an explanation, however, the Tribunal is not prepared to make a finding that he made the abovementioned misleading statement and false declaration deliberately for the purpose of deceiving Departmental officials in order to improve his chances of being allowed to migrate to Australia. The Tribunal notes that the visa applicant is not a well-educated person and accepts the applicant’s evidence that the visa applicant has “great difficulty” in completing Departmental forms properly, and is, accordingly, prepared to accept that those considerations constitute a plausible explanation for the visa applicant’s having made the abovementioned misleading statement and false declaration in that form. That said, however, the visa applicant did sign all of the abovementioned visa application forms, each of which contained a false or misleading statement or declaration, and he must therefore take responsibility for the contents of each of those forms: Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 at para 18.
68. Having regard to the considerations referred to in para 1.9 of the Direction and in paragraphs 66 and 67 above, the Tribunal is not prepared to make a finding that the visa applicant fails to pass the “character test” by reason of his having made false or misleading statements or declarations in 5 approved Departmental forms, or in connection with 5 applications for visas, in September 1996, June 2000, November 2000, May 2001 and January 2002.
69. Having regard to the considerations referred to in para 1.8 of the Direction and in paragraphs 63 and 64 above, however, the Tribunal, on the basis of the visa applicant’s past criminal conduct, is not presently satisfied that he passes the “character test” (as defined in s 501(6) of the Act) for the purposes of s 501(1) of the Act. Accordingly, the discretionary power to refuse to grant a visa, conferred by s 501(1), is enlivened in this case.
The exercise of the discretionary power to refuse to grant a visa
70. Part 2 of the Direction relevantly states:
“2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a. The seriousness and nature of the conduct
2.6It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
…
(b)organised criminal activity resulting in a conviction in Australia or elsewhere;
(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f) murder, manslaughter, assault or any other form of violence against persons;
(g) terrorist activity;
(h)kidnapping;
(i) blackmail;
(j)extortion;
(k)arson;
(l) serious theft (including ‘white collar’ crimes):
…
(m)crimes against children;
…
(n) any other crimes involving violence or the threat of violence;
…
(o)ancillary offences in respect to any of the above offences, …
2.7 It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
…
2.8When exercising discretion, decision-makers must also take the following factors into account as relevant considerations:
(a)any relevant factors provided by the non-citizen as mitigating factors;
(b)the offence is not classified as an offence in Australia:
…
(c)a lighter sentence would be incurred in Australia for a similar offence; or
(d)the non-citizen has been pardoned:
…
2.9…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b)the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.
The best interests of the child
2.13This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
…
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
· In assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
…”.
The Submissions
71. The parties made submissions in relation to the abovementioned “primary considerations” and other relevant considerations, and their application in the circumstances of the present case, and in relation to the appropriate exercise of the relevant discretionary power in this case. The Tribunal has had regard to those submissions for the purpose of makings its findings (as set out below) in relation to those primary, and other, considerations, and for the purpose of ultimately reaching its conclusion on the appropriate exercise of the discretionary power in this case.
The 1st primary consideration – protection of the Australian community
72. The visa applicant’s criminal history in England consists, for the most part, of a series of relatively minor thefts and related property offences committed between 1978 and 1992 when he was aged between 14 and 27 years. Those offences can (as noted at para 6.3 of Ms Burnett’s Psychological Report set out in paragraph 53 above) be divided into two distinct phases – first, offences committed as a juvenile or young adult which mostly involved the extraction of coins from slot machines; and, secondly, shoplifting offences committed during his 20s in order to finance his dependence on alcohol. The minor nature and perceived lack of seriousness of those offences were reflected in the relatively light penalties that were generally imposed on conviction. Since 1992, the visa applicant’s only criminal convictions consist of 3 counts of threatening to kill in January 1994 while at his mother’s house, for which he received a 2-year probation order for each offence, and a breach of the peace in November 1995 for which he was bound over for 12 months in the sum of £100. Those offences were described in Ms Burnett’s report (at para 6.3) as representing a 3rd distinct phase of the visa applicant’s offending history – namely, “offences that are related to his nuisance behaviours whilst intoxicated”.. As regards the visa applicant’s convictions of threats to kill in January 1994, although such convictions would appear on their face to be very serious the Tribunal notes that the relevant threats were apparently made by the visa applicant while he was alone in the bathroom of his mother’s house in a state of intoxication and without a weapon in his possession, and that a custodial sentence was not imposed on his conviction of those offences. The Tribunal also notes that the visa applicant is presently living with and caring for his mother.
73. In the Tribunal’s assessment, the visa applicant’s criminal history in England does not, on the whole, involve serious criminality on his part, and, having regard to the fact that his last conviction occurred over 7 years ago, it cannot reasonably be said, by reason of that criminal history, that he would necessarily pose any threat to the Australian community if he were allowed to enter and remain in Australia.
74. The respondent submitted that, having regard to para 2.6(c) of the Direction, the Tribunal should also regard the visa applicant’s conduct in making false or misleading statements of declarations in connection with applications for visas to enter or stay in Australia between September 1996 and January 2002 (see paragraphs 65-67 above) as very serious and as, prima facie, constituting an offence under s234(1) of the Act. Section 234(1) prohibits, inter alia, the making by a person of “ a statement that, to the person’s knowledge, is false or misleading in a material particular”, or for the furnishing of “ a document containing a statement or information that is false or misleading in a material particular”, in connection with an application for a visa.
75. As stated above (see paragraph 67), however, the Tribunal is inclined to the view, for the reasons expressed above, that the making of the relevant false or misleading statements or declarations, or the furnishing of the relevant documents containing false or misleading statements or information, by the visa applicant was not done deliberately in order to deceive Departmental officers and can otherwise be plausibly explained. Accordingly, the Tribunal is not prepared to express the opinion that the relevant abovementioned conduct of the applicant prima facie constitutes an offence, or offences, against s234(1) of the Act.
76. An important factor which is “relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen” is, as stated in para 2.5 of the Direction, the likelihood that the non-citizen’s criminal, or otherwise reprehensible, conduct may be repeated (including any risk of recidivism). The Tribunal, having regard to the relevant factors referred to in para 2.10 of the Direction, notes that:
· the visa applicant has no previous criminal convictions is Australia;
· his last recorded criminal conviction was in November 1995 in England (namely, a conviction of breach of the peace for which he was bound over for 12 months); and
· his previously established history of committing minor thefts and associated offences (which commenced in 1978) ended in March 1992.
As regards the risk of recidivism in the case of the visa applicant, the Tribunal places great weight on the Psychological Report of Ms Aileen Burnett dated 1 December 2002 (Exhibit A6 – see paragraph 53 above). The Tribunal regards that report as a comprehensive and balanced one and the opinions expressed therein as highly persuasive. As regards the risk of recidivism the following opinions are expressed:
“6.5. It is my opinion that Mr Johnson is currently a low risk of reoffending. He is currently protected by his abstinence from alcohol and his current stable relationship. If Mr Johnson were to experience relationship difficulties and/or resume his alcohol use, his risk of minor acquisitive offending or nuisance behaviours would be increased.
6.6. Mr Johnson is currently a low risk of violent offending; I note that Mr Johnson has no history of physically violent behaviour although he has made threats of violence whilst intoxicated.”
The Tribunal accepts, as submitted by the respondent, that Ms Burnett’s opinion that the visa applicant is “currently a low risk of reoffending” is based on the assumption that he continues to abstain from alcohol and that his stable relationship with the applicant continues. Having regard to the evidence before it, the Tribunal is satisfied that the visa applicant has, since the commencement of his relationship with the applicant in 1996, substantially reduced his consumption of alcohol to such an extent that it can reasonably be said that he is no longer dependent on it (in the way that he was in the late 1980s and early 1990s). The Tribunal is also satisfied that the marriage relationship between the visa applicant and the applicant is a genuine, loving, happy and stable relationship and is likely to continue to be so for the indefinite future. On the whole of the evidence before it, the Tribunal is satisfied that there is very little likelihood that the visa applicant will engage in criminal, or other socially reprehensible, conduct in the future. Furthermore, the Tribunal is reasonably confident that the visa applicant will make a positive contribution to Australian society if allowed to enter and remain in Australia.
77. As regards the relevant factor of general deterrence (see paras 2.5 and 2.11 of the Direction), the Tribunal accepts that a decision to refuse a visa to the visa applicant in this case, by reason of his criminal history in England and his having provided false or misleading information to the Department in connection with visa applications, may have some deterrent effect on the engaging in such, or similar, conduct by other potential applicants for visas. The degree of such deterrent effect is, however, very difficult to estimate and is, furthermore, somewhat speculative.
78. Having regard to, and balancing, the factors which are relevant to an assessment of the level of risk to the Australian community of the visa applicant’s being allowed to enter and remain in Australia, the Tribunal is not satisfied that the 1st primary consideration – namely, the protection of the Australian community – necessarily points towards an exercise of the discretion to refuse the grant of a visa in this case.
The 2nd primary consideration – expectations of the Australian community
79. As stated in para 2.12 of the Direction, the Australian community expects that non-citizens will obey Australian laws (including migration laws) while in Australia. Likewise it can reasonably be said that the Australian community expects that applicants for visas will be honest, truthful and candid in relation to the information they provide to the Australian immigration authorities in support of their applications, and would not generally support the grant of a visa to an applicant who has provided false or misleading information in connection with their application. In the present case the visa applicant has not been convicted of any offence in Australia and there is no evidence that he disobeyed any Australian laws while he was in Australia. As regards the false or misleading information he in fact provided to the Department on several occasions between 1996 and 2002 in connection with visa applications, the Tribunal has already noted (see paragraphs 67 and 75 above) that it is inclined to the view that this was not done by the visa applicant with dishonest intent and that there is a plausible explanation for it. The visa applicant does, however, have an extensive criminal history in England such as to give rise to concerns about his character (see paragraph 64 above) but, in the Tribunal’s opinion, the nature of that criminal history and of those character concerns is not so serious that the Australian community would expect that, by reason solely thereof, he should be refused a visa to enter and remain in Australia. Additional factors militating in favour of the view that it would not be the expectation of the Australian community that the visa applicant should be refused a visa in this case are that:
· he has remained crime-free since 1995;
· he has substantially reduced his consumption of, and overcome his dependence on, alcohol since 1996; and
· he has , since 1996, been married to an Australian citizen (who lives in Australia with her children and grandchildren and has a secure, well-paid job in Australia) in a genuine loving, happy and stable marriage relationship.
80. In the Tribunal’s opinion, having regard to all the relevant circumstances of the visa applicant’s case, it would not be the expectation of the Australian community that the visa applicant should be prevented from re-entering and remaining in Australia to resume married life with the applicant.
81. Accordingly, the 2nd primary consideration – namely, the expectations of the Australian community – does not, in the Tribunal’s assessment, point towards an exercise of the discretion to refuse the grant of a visa in this case.
The 3rd primary consideration – the best interests of the child
82. The visa applicant has no children. The applicant has 2 children, both over 18 years of age, and 2 young grandchildren, all of whom live in Australia. The best interests of those children and grandchildren are relevant considerations in this case but, in terms of para 2.13 of the Direction, they do not constitute a “primary consideration” in this case.
Overall assessment of the primary considerations
83. As previously indicated, it is the Tribunal’s opinion that neither of the 2 relevant primary considerations in this case points towards an exercise of the discretion to refuse the grant of a visa to the visa applicant.
Other relevant considerations
84. Paragraph 2.17 of the Direction refers to various other considerations which, where relevant, should be taken into account but which generally should be given less individual weight than that given to the primary considerations.
85. As regards the other considerations that are relevant in the circumstances of this case, the Tribunal comments as follows:
· the Tribunal is satisfied that the marriage relationship between the visa applicant and the applicant (who is an Australian citizen) is a genuine, loving and stable one;
· although the applicant was informed by the visa applicant, before their marriage, of his criminal history in England, the Tribunal accepts that the applicant regarded that part of the visa applicant’s life, and the unfortunate circumstances which contributed to it, as in the past, and that when she married the visa applicant she had no concerns about this character and indeed regarded him then (and still does) as a person of good character, although she did realise that his criminal record would be taken into account by the Department in considering his application for a visa;
· the respondent acknowledges that the applicant will suffer hardship if the visa applicant, to whom she is genuinely and happily married, is refused a visa to enter and remain in Australia – namely, the emotional hardship of either being separated from her husband, should she choose to remain in Australia with her children and grandchildren, or being separated from her children and grandchildren, should she choose to leave Australia and live in England with her husband;
· the Tribunal notes that the applicant, being also a British citizen, has the right to live and work in England, but that relocating to England would also cause her physical hardship by reason of the adverse effect of the cold, damp weather on her (previously-fractured) pelvis, and financial hardship by reason, not only of the expenses of such a relocation, but also of the fact that she would lose a secure and well-paid job in Australia and face very uncertain prospects ( at the age of 55 years) of obtaining employment in England;
· even if the applicant chose to remain in Australia rather than relocate to England, it would nevertheless cause her financial hardship to visit and spend time with the visa applicant in England on a regular basis;
· the visa applicant’s blood relatives, namely, his mother, brother and 2 sisters, all live in England, but his wife, her 2 children and 2 grandchildren, and various friends, live in Australia – the visa applicant regards the latter ties with Australia as much stronger than his ties with England;
· the applicant is presently financially independent in Australia, but (as indicated above) she might well lose that independence if she relocated to England;
· the visa applicant’s recent conduct may be described as good in that he has remained crime-free since 1995 and has, since 1996, substantially reduced his consumption of alcohol and overcome his prior dependence on alcohol, and he is presently living with, and caring for, his mother;
· the visa, for which the visa applicant has applied, is a permanent visa.
86. In the Tribunal’s opinion, the additional relevant considerations referred to in paragraph 84 above, on balance, clearly favour the grant of a permanent visa to the visa applicant.
Overall assessment of the primary, and other relevant, considerations
87. In the Tribunal’s assessment, the 2 relevant primary considerations do not point towards an exercise of the discretion to refuse to grant the relevant visa to the visa applicant, and the other relevant considerations, on balance, clearly favour the grant of that visa to him. Accordingly, the conclusion of the Tribunal is that the preferable decision in this case is that the visa applicant’s application for a Subclass 309 Spouse (Provisional) visa should not be refused in exercise of the discretionary power conferred by s501(1) of the Act.
Decision
88. For the above reasons 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 the visa applicant for a Subclass 309 Spouse (Provisional) visa should not be refused pursuant to s501(1) of the Act.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ................(sgd V Wong)...............................
AssociateDate/s of Hearing 22 August 2002, 20 February 2003
Date of Decision 2 April 2003
Counsel for the Applicant In person
Counsel for the Respondent Mr M Kennedy
Solicitor for the Respondent Australian Government Solicitor
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