Kaufusi and Minister for Immigration and Citizenship

[2007] AATA 1975

Administrative Appeals Tribunal

ORAL DECISION AND WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1975

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0574

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Monalisa Kaufusi

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date30 October 2007

PlaceBrisbane

Decision For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and in substitution decides that the application for a visa under s 676 of the Migration Act 1958 for Mr Henry Kaufusi should be granted.

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

SENIOR MEMBER

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Visas – refusal of short-stay visa – did not pass character test – residual discretion – decision set aside

Migration Act 1958 s 501

WRITTEN REASONS FOR ORAL DECISION

21 November 2007   Senior Member B J McCabe         

1.      A decision was made and oral reasons given at the hearing of this matter. The respondent subsequently requested written reasons. This statement of reasons has been distilled from the transcript of the hearing.

2.      This is an application by Mrs Monalisa Kaufusi. The application is brought on behalf of her husband Mr Henry Kaufusi. Mr Kaufusi wishes to come to Australia on a short-stay visa to join his wife and child here. His wife is an Australian citizen. It is clear Mr Kaufusi is unable to establish he is of good character as defined in s 501 of the Migration Act 1958. Even so, the decision-maker has the discretion to grant the application for a visa provided he or she has regard to the matters set out in ministerial direction number 21. I am required to follow the same the decision-making process on review.

3.      The ministerial direction requires I look at three things in particular:

·     the protection of the Australian community and members of the community;

·      the expectations of the Australian community; and

·     where there is a child involved, as there is here, I have to consider the best interests of the child. 

4.      I am allowed to have regard to other things mentioned in the ministerial direction but the primary considerations carry the most weight. 

5.      I will begin by discussing the protection of the Australian community.  It is clear the conduct in question – drug importation – is a very serious matter. The seriousness was reflected in the considerable sentence that was handed down by the Supreme Court: eight years in gaol, albeit with a three year non-parole period. 

6.      I must also look at whether the conduct is likely to be repeated. Is this man going to come Australia and offend again? I take the point made by Mr Maycock, for the respondent, that Mr Kaufusi has only been in Australia once and while he was here he committed a serious criminal offence.  However, I am satisfied he is unlikely to repeat the conduct.  I understand he was in a period of uncertainty in his personal life at the time he committed the offence.  He was a foolish young man; he is now considerably older, and he has had the opportunity of studying and working with distressed youth. He has a family and a stable job. He comes from a supportive environment and he has an otherwise unblemished record.

7.      I accept there is some deterrent value in refusing visas.  It is important that people who are considering coming to Australia and committing criminal offences understand that we treat criminal behaviour very seriously. They need to understand the consequences may include a criminal conviction and punishment and a risk they might not be allowed to come back or might be removed from the country. While I acknowledge the seriousness of the conduct, I am satisfied the need to protect the Australian community offers a weak to moderate indication that the discretion should not be exercised in the applicant’s favour.

8.      The expectations of the Australian community are also relevant.  The fact the Australian community almost certainly would not be happy about a drug trafficker being allowed into the country must be balanced against what I anticipate would be the Australian community’s expectation that we give people a fair go where they demonstrate they are rehabilitated. The Australian community would be more understanding if it was aware of evidence that the person concerned had led a blameless life for some time after the original offence when he has been free. The community would also be reassured to learn the person has been attempting to attend to his family obligations and play a useful role in his own community. So I do not accept the expectations of the Australian community as a strong argument against granting the visa – albeit I acknowledge there is a concern.

9.      I am particularly concerned here about the best interests of the child.  While the visa is for a short term stay, the evidence I have heard today says Mrs Kaufusi is effectively residing in Australia indefinitely (as she is entitled to do as an Australian citizen), and she has a daughter living with her here.  Because she has significant family obligations she is unlikely to go back to the United States for any length of time. I accept she plays a pivotal role in her Australian family and it is actually quite difficult for her to simply slip back to the Unites States, certainly for any length of time.

10.     I accept it is similarly difficult to put a child on the plane and send the child back to the United States where in any event she will be separated from her mother, which is probably equally unsatisfactory.  It seems to me that the best interests of the child weigh heavily in favour of the husband being allowed to visit the family in Australia.

11.     I turn now to the other considerations. I am required to consider the extent of disruption to the non-citizen’s family, business and other parts of the Australian community.  There would certainly be disruption to the Kaufusi family if Mr Kaufusi is not allowed to visit. His daughter will be deprived of access to her father in a practical sense. His wife will be deprived of access to her husband - not just on a short-term basis but, given the circumstances I have identified, over the longer term.

12.     There is a genuine marriage. There will be hardship most obviously to Mrs Kaufusi and their daughter if the application is not granted.  There is evidence of rehabilitation and recent good conduct and the minister has properly recognised that.  The fact the application relates to a temporary visa is also a relevant consideration. I accept that would ordinarily count against Mr Kaufusi, who might in different circumstances wait for his family to return to the United States. But my finding that Mrs Kaufusi is effectively required to stay in Australia casts a different light on the application. She made it clear that she hoped her husband would be permitted to stay in Australia permanently in due course.  I think there are also compassionate circumstances, given the ill health that has been recognised in Mrs Kaufusi’s family members with whom Mr Kaufusi appears to have a relationship.  I think those matters weigh heavily in favour of granting the visa.  It is not clear what advice he received from departmental officers before he left the country or the relevance of any international obligations. I will not therefore have regard to those matters.

13.     While I am conscious of the seriousness of the conduct and the general expectation that serious criminal conduct will be visited with very severe consequences, I think the best interests of the child and the best interests of the family favour exercising the discretion to grant the visa application. Mr Kaufusi should be allowed to visit this country on a short term visa. Any application he makes for permanent residency can be dealt with in due course, and I make no comment about that. But for now I am satisfied the visa should be granted.

14.     The decision under review is set aside. I decide in substitution that the application for a visa should be granted.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .......................[Sgd].......................................................
  V. Limu Personal Assistant

Date of Hearing  30 October 2007
Date of Oral Decision                30 October 2007
Date of Written Reasons          21 November 2007
For the applicant  Self-represented
For the respondent                   Mr Maycock, solicitor