Locke and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2004] AATA 123

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/362

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHEILA MARY HONOR LOCKE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date10 February 2004 

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution decides that despite being satisfied that refusal to grant the Subclass 309 Provisional Spouse Visa to Kenneth Locke is justified, the power to refuse to grant the visa should not be exercised.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

MIGRATION – refusal of spouse visa – Applicant not of good character – significant compassionate circumstances – discretion exercised – power to refuse grant of visa should not be exercised

Migration Act 1958: s499, 501

REASONS FOR DECISION

Deputy President Don Muller       

1.      This is an application for review by Sheila Locke, the Review Applicant, of a decision made by a delegate of the Minister for Immigration Multicultural and Indigenous Affairs, the Respondent, dated 7 March 2002, to refuse to grant a Subclass 309 Provisional Spouse Visa to Kenneth Locke, the Visa Applicant.

2.      Sheila Locke is an Australian citizen.  She was born in England and has lived most of her life in England.  She has children and grandchildren living in Australia.  She met Kenneth Locke, a citizen of the United Kingdom, in the mid 1980s, lived with him since 1993 and married him on 11 September 2001.

3.      On 23 November 2001, Kenneth Locke applied for migration to Australia, as Sheila Locke’s spouse.  On 7 March 2002, a delegate of the Respondent decided to refuse the grant of the appropriate visa to Kenneth Locke on the ground that he had a substantial criminal record and that therefore he did not pass the character test within the meaning of those terms in subsections 501(6)(a) and (c)(i) of the Migration Act 1958 (the Act).

4.      At the hearing Sheila Locke was represented by Mr. Boccabella of Counsel and the Respondent was represented by Mr. Hardman, solicitor.  Sheila Locke gave oral evidence and Kenneth Locke gave evidence by telephone.

5.      The Tribunal had before it the following documents:

(a)The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;  and

(b)The Applicant’s bundle of documents, exhibit 2, which contained statements by Sheila Locke, Kenneth Locke, Iris Kent (Sheila Locke’s former mother-in-law), Royston Kent (Sheila Locke’s son), Wendy Kent (Royston’s wife), Christian Kent (son), Judith Woodham (Christian’s partner) and Matthew Woodham (Judith’s son).  The bundle also contains family photographs taken during Sheila Locke’s visit to Australia for Christmas 2002, material relating to Sheila Locke’s cleaning business in Brisbane, material relating to Kenneth Locke’s criminal convictions and other materials and references relating to Kenneth Locke and his business interests in England.

6.      The following background facts are not in dispute and the Tribunal finds as follows:

Re:  Sheila Locke

(a)She was born in the United Kingdom on 26 March 1948.

(b)She first entered Australia in 1967, to re-unite with her boyfriend, Gareth Kent.  Gareth Kent had migrated to Australia, with his mother, Iris Kent.

(c)Sheila married Gareth Kent on 24 December 1968 and settled in Adelaide.

(d)In 1969 she and Gareth Kent returned to the United Kingdom and resided in Surrey.  Their son Royston Kent was born in the U.K. on 13 November 1970.

(e)In 1972 she, Gareth and Royston returned to Australia and resided in Adelaide.

(f)Christian Kent was born in Adelaide on 26 March 1974.

(g)In 1971, Gareth Kent was diagnosed with multiple sclerosis.

(h)In 1975, she, Gareth, Royston and Christian moved to Queensland.

(i)Sheila worked in a Brisbane suburb as a hairdresser and then as manager of a major hair salon.

(j)She was able to take recreational leave from time to time and travel to England to see her parents.

(k)She was granted Australian citizenship on 4 January 1983.

(l)She returned to England on 27 January 1983, for her father’s funeral.  She returned to Australia on 23 February 1983.

(m)On 30 May 1983 Royston Kent was granted Australian citizenship.

(n)In March 1984, Sheila, Gareth, Royston and Christian moved to England to live permanently.  Sheila wanted to be near her mother, who was having difficulty getting over the loss of her husband.

(o)The family lived in Lincolnshire.  They were neighbours of Kenneth Locke and his then wife, Caroline Locke.  They developed a close friendship.

Re:  Kenneth Locke

(p)Kenneth Locke was born in the U.K. on 25 March 1958.

(q)In 1973, when he was 15 years of age, his parents separated.  He remained in the family home with his mother, who took a new partner.  His father moved to another address and also took a new partner.

(r)In late 1973, he committed two criminal offences.  He was processed through the juvenile court system in 1974.  The charges were:

26 March 1974 at Bromley Juvenile Court

“1.  ALLOWING SELF TO BE CARRIED    GUILTY SUPERVISION

ON CONVEYANCE TAKEN  ORDER 2 YRS

WITHOUT AUTHORITY  DRIVING LICENCE ENDORSED

RESTITUTION 250.00
          2.  AA/NO INSURANCE  GUILTY SUPERVISION ORDER 2 YRS
  DRIVING LICENCE ENDORSED
          3.  AA/MINOR ROAD TRAFFIC            GUILTY  SUPERVISION ORDER 2 YRS
              OFFENCE  GUILTY  SUPERVISION ORDER 2 YRS
  DRIVING LICENCE ENDORSED”

22 October 1974 at Bromley Juvenile Court

“BURGLARY AND THEFT – DWELLING – GUILTY – CONDITIONAL DISCHARGE 12 MTHS”

(s)He enlisted in the Royal Signals Regular Army on 7 April 1978.  He was discharged 12 months later on 6 April 1979.  The Departmental Record Officer noted:  “Cause of discharge:  Services no longer required” and “Military Conduct:  Exemplary”

(t)On 5 March 1982, he married his first wife, Caroline.

(u)They started an upholstery cleaning business.

(v)On 11 May 1990, he was convicted at Lincoln Crown Court of:

“PERVERTING THE COURSE OF JUSTICE – GUILTY –
IMPRISONMENT 6MTHS - WHOLLY SUSPENDED 12 MTHS COSTS 250.00”

(w)Caroline Locke left her husband Kenneth Locke in July 1990.  Kenneth Locke lived in the former matrimonial home with his two children, James (who was 10) and Claire (who was 8).  The marriage breakup was not smooth.  There were some problems relating to the custody of the children.

(x)Kenneth Locke had to give up the upholstery cleaning business because it required two people to operate it.

Sheila Locke and Kenneth Locke

(y)In late 1990, Gareth Kent’s health had deteriorated and he offered to employ Kenneth Locke as his personal carer.

(z)By early 1991, Gareth Kent’s health had further deteriorated to the point where he had to be moved to a nursing home.

(aa)In May 1991, Sheila and Kenneth Locke began a romantic relationship.

(bb)By 1991, Kenneth Locke became concerned about the possibility of losing his home because he could not meet the mortgage repayments..  He had not been able to contact Caroline to get her permission to sell.  He became involved in a criminal conspiracy with two other persons.  They were in the business of defrauding building societies by borrowing money upon the purchase of homes at highly inflated values.  Kenneth Locke allowed the former matrimonial home to be used as one of the homes in the fraudulent scheme.  The benefit to him was that he received the payout, after mortgage repayments, due to him and his former wife, Caroline.  To assist in the fraud, he forged or arranged for the forging of, Caroline’s signature.  He received a balance of approximately  £34,000 (of which £17,000 should have been Caroline’s share).

(cc)Kenneth Locke initially set aside £17,000 for Caroline but he dipped into it for living expenses and family holidays.  By 1993 it had largely been spent.

(dd)By 1993, Kenneth Locke was living with Sheila Locke.

(ee)On 20 January 1993, Sheila and her then husband Gareth Kent, were officially divorced.

(ff)On 5 May 1993, Kenneth Locke was convicted in the Boston Magistrates Court of:

“1. DRIVING WHILST DISQUALIFIED – GUILTY - FINE  80.00
    COSTS 30.00 DRIVING LICENCE ENDORSED WITH 6 POINTS

2.  MINOR ROAD TRAFFIC OFFENCE – GUILTY – FINE 16.00

3.  USING VEHICLE WHILE UNINSURED – GUILTY – NOT SEPARATELY        DEALT WITH”

(gg)Kenneth Locke found it difficult to get employment.  He worked for an agency in a wood yard, and then in food processing factories.  He later obtained a good job in the label printing industry.

(hh)In 1993, Caroline Locke discovered that the home in which she had had a share was sold.  She reported the matter to the police.  The matter was investigated and eventually the conspirators were charged and convicted.

(ii)On 15 January 1996, Kenneth Locke was sentenced in relation to the fraud and theft charges arising out of the sale of the home.  He was also convicted and sentenced on the same day for growing a cannabis plant presumably during 1995.  He was sentenced to a total of 18 months imprisonment for fraud theft and cannabis production.  Judge Heath made the following sentencing remarks:

“Kenneth Locke, you have pleaded guilty to using a false instrument with intent.  You got somebody to forge the signature of your former wife, to enable the transaction in relation to Maltcairn Cottage to go ahead.  You have also pleaded guilty to theft of your wife’s interest in Maltcairn cottage.

These offences follow shortly upon the expiration of the period of suspension of an offence of perverting the course of justice.

As a result of what you did you received £34,000 and you have deprived your wife of her interest, whatever that may have been, in Maltcairn cottage.  A large amount of what you received was spent on luxuries, including expensive holidays.

Those offences, to which you have pleaded guilty, and I note that you have pleaded guilty on the first available occasion, and they were some four years ago, are so serious that only a custodial sentence can be justified for them.

I ask myself whether there is anything in the personal mitigation available to you which can persuade me not to send you to prison.  The answer is that there is nothing.

In relation to each of those counts you will go to prison for 18 months concurrently.  For the production of the cannabis plant, or the cultivation of the cannabis plant in the separate indictment, you will go to Prison for 3 months concurrently.  In your case that is a total period of imprisonment of 18 months.”

(The co-conspirator, said by the Judge to be the “central figure” in relation to the counts, received a sentence of 2½ years.  The other co-conspirator, accepted by the Judge as “not the brains behind the operation”, received a sentence of 18 months.)

(jj)Kenneth Locke was released from prison after serving nine months, due to his good behaviour in prison.  He was released on 11 October 1996.  His time in prison was spent at a local “open” prison.  Towards the end of his term he was allowed to spend time at home.

(kk)From 1994 to 1999, Kenneth Locke worked for a label printing company (apart from the period in prison).  It was a well-paid job.

(ll)Gareth Kent passed away in 1997.

(mm)On 30 April 1998, Kenneth Locke divorced his first wife, Caroline.

(nn)In 1999, Kenneth and Sheila Locke moved home to be close to Sheila’s mother who was then in ill-health.  They then began their own business of cleaning carpets and upholstery.

(oo)Sheila Locke’s first son, Royston Kent relocated to Australia on 11 September 1998.  Her second son, Christian Robert Kent relocated to Australia on 31 December 2001.

(pp)On 11 September 2001 Sheila and Kenneth were married in Scotland.

(qq)Two months later, on 23 November 2001, Mrs Locke applied for partner migration to Australia for her husband.

(rr)Sheila’s mother passed way in 2002.

(ss)In October 2002, Sheila Locke re-located to Australia.  She has been operating a cleaning business.  It is her hope to have Kenneth join her in Australia both as a husband and as a business partner.

7.      The relevant provisions of the Act are:

“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.

Note:   Character test is defined by subsection (6).

Character test

(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)…..;  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)       ….

Otherwise, the person passes the character test

(7)For the purposes of the character test, a person has a substantial criminal record if:

(a)…

(b)…

(c)the person has been sentenced to a term of imprisonment of 12 months or more;”

8.      There is no doubt that Kenneth Locke has been sentenced to a term of imprisonment of 12 months or more.  He therefore has a “substantial criminal record” and does not pass the “character test” within the meaning of those terms in the Act.

9.      The Tribunal nevertheless has the discretion within s.501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.

10.     In deciding whether to exercise any discretion available to it, the Tribunal is bound to take into account directions made by the Minister pursuant to section 499 of the Act:

“499     Minister may give directions

(1)the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)the performance of those functions;  or

(b)the exercise of those powers.

(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)A person or body must comply with a direction under subsection (1).

(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

Subsection (1) does not limit subsection 496(1A)

11.     The relevant direction made by the Minister in this matter is Direction 21, “Visa refusal and cancellation under section 501 of the Migration Act 1958 “, (the Direction).  The relevant sections of the Direction are as follows:

“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.      

…

PRIMARY CONSIDERATIONS

2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

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

the expectations of the Australian community; and

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.

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 that 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 hard ship 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 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;

….

(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;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

…”

12.     In relation to Kenneth Locke’s criminal offences, he has appeared to express remorse for his past conduct.  He claims that he has learnt his lessons;  he has the love of a good woman;  they are doing well in their business;  they now own property in England worth about £250,000.  Whilst not excusing his past conduct, he believes that his difficult teenage years plus the unpleasant breakup of his first marriage contributed to some imbalance in his life, which affected his character.  He believes that he changed considerably for the better since living with Sheila from 1993 onwards.  Exhibit 2 contains a bundle of references which, on their face, indicate that Kenneth Locke is well thought of in his community.

13.     Kenneth Locke has given an explanation of the circumstances surrounding each conviction.  The Tribunal is in no position to verify the truth of the assertions, but there is no material to the contrary and the explanations do not appear to be far fetched.  Briefly the explanations were:

(a)(i)     Allowing self to be carried on a conveyance taken without    authority;  and

(ii)     Burglary and theft dwelling (1974)

After his father left home, his mother started a relationship with a man who was abusive.  Kenneth Locke decided that he would run away from home.  He accepted a lift in a stolen car driven by another youth.  The youthful driver was inexperienced and crashed the car.  He also accepted 50 pence which he knew had been stolen from a house.

(b)Perverting the Course of Justice (1990)

He was out drinking with a friend.  He asked his friend to drive him home in his (Locke’s car).  The friend drove Locke’s car off the road and hit a pole.  Locke told the police that he had been driving.  On the following day he revealed that he had not in fact been driving.

(c)Fraud and theft (committed 1991, convicted 1996)

Dealt with in paragraphs 6 (bb), (hh), (ii) and (jj) above.

(d)Driving whilst disqualified (1993)

He claims that in May 1993, his ex-wife, Caroline, abducted his children.  He drove his car, whilst disqualified, to go and retrieve his children.

(e)Growing Cannabis (1996)

He claims that in 1996 he was suffering severe back pain.  He was using walking sticks to get around.  He was using strong pain killers.  Someone told him about the virtues of cannabis for pain relief.  He grew it in his front yard where it was seen by the police.  He did not grow it for sale or for any other purpose.  He does not condone the use of drugs.

14.     Sheila Locke gave evidence to the effect that apart from her ties to her husband, Kenneth Locke, she has no family ties in England since both of her parents have passed away.    Her only other family, her two sons and their three children, all live in Australia. She made the following points (among others):

·     She and Kenneth Locke have established a successful cleaning business in England.

·     Kenneth Locke is well regarded in the immediate community in which he lives.

·     She was not involved in the events associated with the fraud perpetrated by Kenneth Locke in 1991, but she became caught up in the court proceedings which later followed.  She stood by Kenneth Locke during the court proceedings, period in prison and later rehabilitation.

·     She confirmed that she and her two children plus Kenneth Locke and his children went to Crete for a two week holiday in 1991/1992, paid for by Kenneth Locke.  They also had two camping holidays in Scotland.

·     She wishes to return to live in Australia to be near her sons and her grand children.  She is also on good terms with her son’s grandmother, Iris Kent.

·     Whilst she has been in Brisbane she has established a small domestic and commercial cleaning business which is doing very well.  If her husband is allowed to join her, he will be a partner in the Australian business.

·     If her husband is not granted permission to join her in Australia she will return to England to live with him there.  She would then have to travel to Australia from time to time to see her children and grandchildren.

15.     The Tribunal accepts Sheila Locke as a witness of credit and finds that the points she made were valid.

16.     In deciding whether to exercise the discretion to not exercise the power to refuse to grant the visa to Kenneth Locke, the Tribunal makes the following findings:

(a)He has never been convicted of any crime involving personal violence.  He does not appear to present any potential physical harm to anyone in Australia.

(b)The fraud and theft convictions were treated by the sentencing judge as serious crimes, and, with respect, so they should have been.  However, the events occurred over 12 years ago and arose partly out of the unusual matrimonial position that Kenneth Locke found himself in.  Although it is always difficult to predict the chances of recidivism, it would seem to the Tribunal that the chances of these crimes being repeated by Kenneth Locke in Australia to be fairly remote.

(c)On the material before the Tribunal, Kenneth Locke seems to have lived as a model citizen for the last seven years.

(d)There are compelling compassionate grounds for allowing the situation whereby Sheila Locke can live close to her children and grandchildren.  It is all very well to say that she could live in England and fly out to visit them from time to time.  However, that is not really satisfactory.  It is expensive.  Sheila Locke is now 56 years of age and she will not be able to keep commuting to see her family when she gets a few years older.

17.     The Tribunal decides that on balance the discretion should be exercised such that despite being satisfied that refusal to grant the visa is justified, the power to refuse to grant the visa should not be exercised.

18.     The decision under review is set aside.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  7 August 2003 
Date of Decision  10 February 2004         
Counsel for the Applicant         Mr. Boccabella
Solicitor for the Respondent     Mr. P. Hardman