Kara and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 846
•27 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 846
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1030
GENERAL ADMINISTRATIVE DIVISION )
Re ALI KARA
Applicant
And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon Mr R N J Purvis Q.C., Deputy President
Date27 September 2002
PlaceSydney
Decision The decision of the Tribunal is that it sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Migration Act 1958 be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.
[SGD] The Hon Mr R N J Purvis Q.C.,
Deputy President
CATCHWORDS
IMMIGRATION – subclass 820 partner visa – character test – not of good character – whether discretion should be exercised in Applicant's favour – primary considerations – protection of the Australian community – likelihood that conduct be repeated – general deterrence – expectations of the Australian community – best interests of the child – other considerations
Migration Act 1958 – section 501
Ministerial Direction No 21 – Visa Refusal and Cancellation under Section 501 of the Act
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Patel v Minister for Immigration and Multicultural Affairs [2002] AATA 78
REASONS FOR DECISION
27 September 2002 The Hon Mr R Purvis, Deputy President
the application
This is an application by Mr Ali Kara ("the Applicant") by which he seeks review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") on 25 June 2002 refusing his application for migration to Australia by a partner (subclass 820 visa), the same being sponsored by his wife Ms Selda Uykun, under section 501 of the Migration Act 1958 ("the Act").
The Applicant was considered to be not of good character and the relevant discretionary factors were not determined in his favour by the Respondent. There is no issue between the parties that by reason of the express provisions of the Act the Applicant is not of good character. The issues now before the Tribunal entail consideration of whether the decision of the Respondent should be affirmed or set aside by exercise of the discretion conferred upon the decision maker under section 501(1) of the Act.
the hearing
At the hearing of the present application the Applicant was represented by Mr Nicholas Poynder of Counsel, the Respondent by Mr Glen Cranwell, solicitor of the office of the Australian Government Solicitor.
There was admitted into evidence the documents required to be provided by the Respondent pursuant to section 501G of the Act marked G1-G13. The following documents were tendered on behalf of the parties as exhibits and marked accordingly:
Exhibit Description Date
A Statutory Declaration of Michael Kah and Attachment 1 September 2002
B Letter from Councillor Con Constantine 13 August 2002
C Reference by Jan Bourchier Undated
D Letter from Laurie Howard, Timaru Engineering Supplies Ltd 29 August 2002
E Reference by Stuart Smith, Nachi (Australia) Pty Ltd 23 July 2002
F Reference by Jodie Crastin 12 August 2002
G Letter from Rob White, Spastic Centre 10 December 2001
H Reference by Mino Pellizzon, Prestige Bricks and Pavers Pty Ltd 2 September 2002
J Reference by Dr P.D. Romeo 23 July 2002
K Statement of Phillip Ceccato, Parklea Markets 10 August 2002
L Statement of Ali Kara and Attachment 9 September 2002
M Statement of Selda Uykun 27 August 2002
G11 Letter from Mrs Kara 10 April 2001
G12 Handwritten letter from Mrs Kara 30 April 2001
G13 Document "In Confidence" 1 May 2001
NSW Police Report Various
N Statement of Haydar Kara and Attachment 9 September 2002
O Statement of Hatice Yilmaz 9 September 2002Competitiveness Indicator of Turkey and Australia 11 September 2002
The following persons were cross examined on their written statements namely the Applicant, his wife Ms Selda Uykun, the Applicant's uncle Mr Haydar Kara, his aunt Ms Hatice Yilmaz and Mr Phillip Ceccato.
statutory provisions and directions
The Act provides as here relevant:
"Section – 501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate - natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
Character Test
(6) For the purpose 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
…
(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
…Otherwise the person passes the "character test".
Substantial criminal record
(7)For the purposes of the character test, a person has a "substantial criminal record" if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…"
The relevant Direction of the Minister under section 499 of the Act is Direction No 21 which, apart from providing guidance as to the application of the character test and the matters there to be considered, makes provision for factors to be taken into consideration in exercising the discretion contained in section 501. The direction as here relevant provides:
"PART 2 – EXERCISING THE DISCRETION
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
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
….2.5The 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
2.6 It 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:
…
(f) murder, manslaughter, assault or any other form of violence against persons;
…
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
…
2.8 When 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;
…
(c) a lighter sentence would be incurred in Australia for a similar offence; or
….Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia... 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…The best interests of the child
…
2.15 In general terms, the child's best interest will be served if the child remains with its parents…
...
2.16 When considering the best interests of the child, decision-makers should have regard to the following:
(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship...
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
...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 defacto or interdependent relationship with, an Australian citizen…
(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 dependent 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;
…
(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
…"
relevant facts
The Applicant was born in Turkey on 20 January 1979, his wife, Ms Selda Uykun in Australia on 8 February 1980. They were married in Sydney on the 2 June 2000 and have a son born on 22 May 2002. They are cousins to one another.
The Applicant has family living in Turkey and in Australia. The Applicant's uncle Mr Haydar Kara and his three sisters migrated with their parents to Australia in 1971. The Applicant's parents remained with the Applicant and his siblings in Turkey. In the fullness of time the uncle and aunts married in Australia and they now have between them twelve children. In 1999 the uncle's mother, the Applicant's grandmother, became gravely ill. The Applicant's father visited Australia to see his mother, the Applicant himself was to follow. The Applicant obtained a three-month visitor's visa but before his arrival his grandmother died.
The Applicant grew up and obtained his education in Turkey. His father was an Army Officer. He became involved in anti-social activities committing offences of larceny in 1995, battery in 1995 and 1999, use and possession of narcotics in 1997 and driving whilst under the influence of alcohol in 1999. These offences will be considered in greater detail later in these reasons. In respect of the larceny and battery offences he was convicted and fined the equivalent of $57.00, $142.00 and $852.00 respectively. In respect of the narcotics offence he was sentenced to one year, the minimum sentence under the relevant legislation, which was wholly deferred. He lost his license for three months in respect of the traffic offence.
Shortly after his arrival in Australia on 19 March 2000 and on a subclass 676 tourist (short-stay) visa, he met his cousin Selda Uykun and after a relatively short acquaintance and just prior to the expiration of his visa they were married. The Applicant was twenty-one and his wife twenty years of age. At the time of the wedding Ms Uykun knew that the Applicant had "had some trouble" in Turkey but was unaware of the details.
The subject application of the Applicant and the sponsorship for partner migration to Australia of Ms Uykun are as to the former dated 6 June 2000 and the latter 3 June 2000, four days and one day respectively after their wedding. They were each filled in and completed by Ms Uykun. She says that she endeavoured to translate the questions into Turkish and wrote down what she was told in English or marked a square in accord with her understanding of the answer given to her by her husband. In answer to the question "Have you or any other person included in this application ever been convicted of a crime, offence in any country (including any conviction which is now removed from official records)?" she placed a tick in the "No" box. She says that she translated the entire form for her husband. When she came to this question, she says she asked him if he had any criminal offences "such as going to jail, have you been to jail or not". The Applicant says that he had no intention of giving false information and did not deliberately seek to not reveal his criminal record. He says that at the time his understanding of "criminal" was when a person was or had been in prison. This he had not been.
According to their uncle Mr Haydar Kara, following their marriage the Applicant and his wife "had their ups and downs… but it was basically a problem with expectations from each other due to the different cultures they grew up in" as well as the Applicant's lack of familiarity with the English language and his wife's lack of fluency in the Turkish language.
In April 2001 the Applicant and his wife had what Ms Uykun described as "an argument", "a scuffle hands at each other", "a making of verbal assaults", "both threatening each other", "we both went a bit overboard", and the Applicant described as "an argument', "grabbing her by the hair, the arm and pulling her inside after she returned to the house at 12 o'clock at night". The wife a few days later reported the happening to the police. No further action was taken. On 10 April 2001, Ms Uykun wrote a letter to the Department of Immigration (G11) inter alia saying:
"I am writing this letter to inform you that I will be no longer supporting my Nominated spouse for his permanent residency.
We are no longer together as from the 21st March 2001 and will not be considering a reconciliation.
Since he has come to Australia he has caused nothing but trouble to me and my family. He has made me leave work, left me whilst pregnant and then left me with nothing. He has also physically and verbally abused me, threatening me that he will kill me and especially I am scared if he does stay in Australia or leaves and does ever come back for a visit he will do something to me, which I have made a report of this to the police…
He came to Australia on plans to make a illicit marriage with some people and instead married me in good faith.
He has a violent background and which I believe his criminal records show this in Turkey. I do not recommend Ali Tugrul Kara to stay in Australia because of all this and for my letter to be confidential as possible…"
On 30 April 2001 she wrote a further letter (G12) saying inter alia:
"… I Selda (Uykun) Kara have decided to withdraw my withdrawal of my nomination supporting my husband Ali Tugrul Kara, which was lodged 10th of April 2001.
I wish to still supporting him to stay with me in Australia. We have both decided to reconciliate our marriage and have been slowly working things out. I have given him another chance to make things work. At the moment he is living with me.
We have gone through some tough times, but I do hope we can work things out for the best of us…."Ms Uykun now says that she did not write her letter or go to the police until some days after the event. That it was not serious. That even though she was upset at the time she did not want to lay charges. She wanted her husband to know "what laws are like in Australia", and from then on events of a like nature "have not happened again". She vehemently denies that any pressure was placed on her to change her mind. "I am not that sort of person" she said. It is fair to note however that the uncle Mr Haydar Kara did counsel the couple and as he puts it "in the next few days they had both realised that they had over reacted and made each other promise to try harder to understand each other's needs" (Exhibit N).
It would seem that the letter from Ms Uykun prompted the Department to request of the Applicant details of any "criminal records" in Turkey as well as to give him notice of possible deportation. The Applicant went to the Turkish Consulate in Sydney and applied for details of his criminal record. In due course they were available. He and his wife collected the documentary material (G4, pp 24-28) and gave it to an officer of the Department.
On 15 January 2002 the Department gave the Applicant a notice of consideration of visa refusal under section 501 of the Act. A reply on his behalf was furnished on 8 March 2002. The Applicant was detained by the Department on 18 July 2002.
Since his arrival in Australia the Applicant has engaged in employment and except for the present period in detention has supported his wife and son. His pre-detention employment is available to him in the event of his being allowed to remain in Australia.
credibility of applicant and ms uykun
The Tribunal has considered the evidence given by both the Applicant and his wife, particularly as it relates to the misinformation in the migration application and the domestic event in April 2001. The Tribunal has observed each in the course of their giving their evidence and being cross-examined. To the best of its observation the Applicant presented as an impressive and sincere witness. He appeared genuine and answered the questions put to him, even though mostly through an interpreter, without hesitation.
Ms Uykun likewise did not hesitate in narrating the event of April 2001 and her feelings at the time. She assumed her share of responsibility. She also assumed her share of blame, if it be such, for the error in completing the migration form. She is an honest person.
The Tribunal accepts the evidence of the Applicant and Ms Uykun that the error in the form was consequent upon a mistaken understanding of the question asked and that there was no intention, on the part of the Applicant or his wife, to mislead the Respondent. The Tribunal also accepts that the event of April 2001 was an overreaction by two young people in the early days of their marriage and recognises the fact that on the evidence there has not been a re-occurrence.
the applicant's criminal record
Details of the Applicant's criminal record are as follows:
1995 3 September Larceny
The Applicant was then sixteen years old. He took two bottles of whisky from a supermarket as a dare from "school mates". He was caught and charged with larceny, pleaded guilty and was fined the equivalent of $57.00.7 December Battery
The Applicant was sixteen years old and with a group of friends was set upon by about twenty assailants. He says that he wrestled a knife from one of the people attacking him and used it to defend himself. He was convicted and fined the equivalent of $142.00.
1997 15 December
The Applicant was eighteen years old. He had been using marijuana provided by a friend. Police attended his home looking for the friend. No drugs were found at the house but the Applicant admitted using marijuana and was charged with possession and use. He was convicted and sentenced to the minimum sentence under the relevant section of the Turkish penal code being one year, which sentence was wholly deferred.1999 1 September Battery
The Applicant was twenty years old. He had entered a bar or nightclub thought to be without permission. Security men tried to evict him. When he tried to explain he was hit with a chair on his forehead and suffered a cut to his arm. He was charged, convicted and fined the equivalent of $852.00.
5 November Traffic violation
The Applicant was convicted of drink driving and lost his licence for three months.The Applicant recognises that he did wrong, was "in the wrong crowd, the wrong friends", and has expressed his regret for his past conduct. He also attributes his behaviour to stress that he was experiencing as a consequence of his parents separating. He says that he is not the sort of person "who was always in fights", the occasions when he was convicted of battery were those when he had been set upon and reacted. Other persons involved were, he said, sentenced to terms of imprisonment. He was not.
Mr Haydar Kara was not aware of the committal of the above offences until the Department gave notice of consideration of deportation. The Applicant was regretting his conduct, down played its seriousness. Mr Kara believes, as does the Tribunal, that the Applicant is not "a naturally dishonest person" and attributes the anti-social conduct to "befriending some undesirable people in his youth". Indeed he says "Ali's father served his country for 25 years as the protector of the people; a Gendarme Commander. Ali wouldn't tarnish the family name. He is too proud for that." (Exhibit N, para 26). Mr Kara further says (Exhibit N, para 27):
"The Kara family have been in Australia since 1971 and we are proud of the fact that none of us have criminal records. I won't accept it from my children and while Ali is in Australia I won't accept it from him… So if I may be selfish for a moment and offer my good name as a reference for my nephew Ali Kara for he carries my name and my values. He is welcome in my home Australia".
The Tribunal does not consider the Applicant's criminal history as being other than serious. However, he was young at the time and except for the 1999 conviction of battery did not have imposed upon him severe fines or a term of penal servitude. The deferral of the mandatory drug sentence is indicative of it not being considered such as to warrant the Applicant being deprived of his liberty. Whilst the Australian migration legislation refers to "twelve months imprisonment", there is no question of such a sentence being mandatory. The Tribunal accepts the circumstances surrounding the committal of the offences being as outlined by the Applicant.
On the whole of the evidence before it, the Tribunal finds that the chance of the Applicant re-offending is minimal. Apart from his own strength of character, his wife and uncle as well as other members of his family will ensure that this is so. There were tendered before the Tribunal statements of persons who with knowledge of his past criminal conduct maintain that the Applicant "represents the best of what I think today's youth should be" (Exhibit B), is a "courteous, caring, honest, hardworking and family oriented" person (Exhibits C and D), is a "man of exceptional character" (Exhibit E) and others that he is an "excellent (good) character… an asset to the community " (Exhibits F, J and K) and an employer that he is "honest and trustworthy" (Exhibit H).
the applicant's family and extended family in australia
An indication has earlier been given as to the extent of the Applicant's family in Australia. His wife and son are dependent on him. His uncle and aunts and their families look to him as bonded with them. They are supportive of him as seen in their written statements and presence during the two day hearing of this application.
These persons would experience hardship if the Applicant be not allowed to remain in Australia. More particularly would his wife and son. She was born and educated here and has no significant family association with Turkey. She has no desire to live there. She wants to stay in Australia with her family, friends and associates. Her mother and a sister live in Australia. The mother has a heart condition and is on a disability pension. The sister has been diagnosed with diabetes and a mental illness. Her parents are divorced. If her husband be not allowed to remain in Australia she would as a single parent be dependent on social security for financial support.
the discretion
As earlier indicated in these reasons by dint of the provisions of the Act, the Applicant is deemed to be not of good character. The discretionary considerations then are called to be addressed.
the primary considerations
protection of the australian community
On behalf of the Applicant, the Tribunal's attention was drawn to the Applicant's conduct as seen in the circumstances leading to his criminal convictions and the failure to disclose his convictions in his migration application. The latter aspect has already been considered earlier in these reasons. It is accepted that an error was made in answer to a question contained in the form but the Tribunal is satisfied that there was not an intent on the part of the Applicant or his wife to mislead the Department. This being so the significance that would be attached to misinformation and the misleading of migration officials as referred to in Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 and other cases is not applicable or relevant.
Directing its attention to the circumstances leading to the criminal convictions in Turkey, the Tribunal whilst being satisfied that the conduct was serious does not find it to have been "very serious". The 1995 convictions of larceny and battery occurred when the Applicant was only sixteen years of age and both attracted fines. The marijuana possession and use in 1997 resulting in the mandatory sentence was not a dealing in drugs as envisaged by the Australian migration legislation and in the circumstances earlier outlined may well not have attracted a term of imprisonment. The 1999 battery conviction was serious but on the basis of it having occurred in the circumstances earlier detailed was consequent upon the Applicant seeking to assert a right he thought he had to enter into and remain upon the nightclub premises. He was badly injured in the altercation that ensued.
On behalf of the Respondent it was maintained that the conduct of the Applicant especially with reference to the battery charges was indicative of a person prone to violence. This being so it was said the Australian community warranted protection from a person who may well commit like acts in the future. The Tribunal has already indicated that the Applicant is most unlikely to re-offend. The Respondent does however draw the attention of the Tribunal to the nature of the assaults, to the Applicant's use and possession of marijuana and to the fact that the offences extended from 1995 to 1999.
likelihood that conduct be repeated
The likelihood of the Applicant re-offending is in the opinion of the Tribunal minimal and it does not agree with the Respondent's contention that the number of offences and the period over which they were committed demonstrates a likelihood that the conduct may be repeated. Their very nature and the relatively light sentences imposed bear witness to their gravity. The Tribunal is also satisfied that the Applicant has not since 1999 engaged in anti-social conduct of a like nature.
general deterrence
The Respondent submitted that there are "…public policy reasons in favour of deterring those who may be minded to make false statements and commit offences". With reference to the committing of offences there can be no issue raised as to there being good reasons in the interest of public policy for deterring persons from committing criminal offences. The Respondent draws attention to the nature of the offences committed as they relate to violence and drugs. The Tribunal in this matter however does not see a refusal of a visa as being a deterrent to people behaving as did the Applicant some years ago, young as he was, in Turkey or other like places. On behalf of the Applicant Mr Poynder submitted that the question of deterrence in the context of the protection of the Australian community is directed to cases involving persons who have committed offences in Australia or in relation to their migration to Australia (Patel v Minister for Immigration and Multicultural Affairs [2002] AATA 78). This may well be so and if it is then the issue of deterrence does not arise in the present case as all of the relevant offences were committed in Turkey.
expectations of the australian community
On behalf of the Respondent it is contended that the Australian community would expect that those who commit offences, the nature of those committed by the Applicant, should not be permitted to enter or remain in Australia. There most certainly is an expectation factor in persons convicted of offences not being welcome to the Australian society. However this factor has to be considered in regard to the relevant circumstances and in the totality of the various matters that warrant consideration. As earlier indicated the Tribunal is of the opinion that whilst the offences committed are serious they do not fall into the "very serious" category as detailed in Direction 21.
best interests of the child
It is true that the child of the Applicant and his wife is young, some four months of age and that the time the Applicant has had with his son has been limited. It is said that there is no impediment to the child in due course learning Turkish as a language and adapting to the circumstances of living in Turkey. However the best interests of the child cannot be considered apart from his living in a home with his mother an Australian citizen and his father. The mother does not wish to leave Australia and live in Turkey. If the Applicant is not granted a visa the family will be broken, the mother living as a single parent. It is true to say that the child would no doubt receive love and affection from relatives in Australia but as the child of a dependent mother and not one living in a family environment. It is clearly in the best interests of the child for the mother and father to remain living together if possible.
other considerations
The considerations relevant to a decision other than those referred to above in this matter relate primarily to the impact upon the Applicant's extended family if he should not be allowed to remain in Australia, the impact on his marriage and the hardship that would be caused to the Applicant's extended family. There is also to be considered the conduct of the Applicant since his arrival in Australia, as seen in the numerous references and other documentary material placed before the Tribunal. Such material extends through the Applicant's family life, social life, work and employment activities as well as charitable contribution. There is no adverse reflection upon the Applicant contained in any of such material as earlier indicated. It is consistently laudable.
decision
The Tribunal is satisfied in this matter that the decision under review should be set aside and the matter remitted to the Respondent with a direction that the discretion provided for by section 501 of the Act be exercised in the Applicant's favour. The Tribunal is satisfied that there does not arise for serious consideration issues referrable to protection of the Australian community in that whilst the offences taken as a whole may be considered as serious the likelihood of recidivism is minimal. The issue of general deterrence does not seriously arise. Whilst the expectations of the Australian community are to the effect that criminals should not be permitted to enter and remain in Australia this consideration must be looked at not only as to the nature of the offences but also in the relevant context. The Tribunal is satisfied that the interests of the young child would be better served if his father is able to exercise his earning capacity and effectively maintain a family household. The Tribunal is further satisfied that the Applicant does have the support not only of his wife but of his extended family in Australia each one of whom would experience hardship to a greater or lesser degree in the event of the Applicant being not granted a visa.
The decision of the Tribunal is that it sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion provided for by section 501 of the Act be exercised in the Applicant's favour. The matter is remitted to the Respondent for further consideration.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Mr R N J Purvis Q.C., Deputy President
Signed: .....................................................................................
AssociateDates of Hearing 13 and 16 September 2002
Date of Decision 27 September 2002
Counsel for the Applicant Nicholas Poynder
Solicitor for the Respondent Glen Cranwell
0
1
0